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14 Ga. 438 Page 1

14 Ga. 438, 1854 WL 1492 (Ga.)

(Cite as: 14 Ga. 438)

PADELFORD, FAY & Co. plaintiffs in error v.

THE MAYOR AND AEDERMEN OF THE CITY
OF SAVANNAH.

Ga. 1854.

Supreme Court of Georgia.
PADELFORD, FAY & Co. plaintiffs in error
v.

THE MAYOR AND ALDERMEN OF THE CITY
OF SAVANNAH.

No. 64.

January Term, 1854.

*1 [1.] The Ordinance of the City Council of
Savannah, “That on the gross amount of sales of all
negroes, goods, wares and merchandise or other
commodity, article or thing sold within the
corporate limits of the city of Savannah, by any
person or persons whomsoever, upon or for a
commission, premium, per centage or other profit
charged or to be charged thereon, or on joint
account, and when not included in the returns as
stock in trade, and whether for cash or credit,
between the twenty-fourth day of January, 1842,
and the last of April, 1842, inclusive, and annually
thereafter, between the first day of May in each and
every year, and the last day of April in each
succeeding year, inclusive, there shall be paid by
the person so selling, whether commission
merchant, broker or agent of any nature or kind
whatsoever, fifty cents on every hundred dollars of
the amount of such sales, respectively”, &c., is not
unconstitutional, according to the decision of the
Supreme Court of the U. S. in Brown vs. Maryland ,
12 Wheat.

[2.] That case is overruled by the License Cases, in
5 Howard's R.

[3.] And by the Passenger Cases, in 7 Howard’s R.

[4.] And partly by the case of Groves et al. vs.
Slaughter , 15 Pet.

[5.] The Constitution is to be construed in the sense
in which it was understood by the makers of it at the
time when they made it.

[6.] This sense is expressed by the four following
propositions:

1. That the Constitution delegated to the General
Government, or any department thereof, no power
by implication , but only delegated such powers as it
expressly enumerated.

2. That it delegated no exclusive power, unless the
delegation was said to be exclusive.

3. That it laid no prohibition upon the States, except
such as it specified.

4. That the words used in it, if susceptible of more
meanings than one, were used in the meaning which
was least favorable to the delegation of power, and
most favorable to its retention.

[7.] The Supreme Court of Georgia is co-equal and
co-ordinate with the Supreme Court of the U. S.;
and therefore, the latter cannot give the former an
order, or make for it a precedent.

[8.] The four propositions are true, anything said or
done by the Supreme Court of the U. S. to the
contrary, notwithstanding.

[9.] Tried by these, the decision in Brown vs.
Maryland , is unconstitutional.

[10.] Tried by these, the Ordinance in question is
not unconstitutional, as against the commercial
clause.

[11.] Tried by these, it is not against the clause
which prohibits the State to tax imports.

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14 Ga. 438 Page 2

14 Ga. 438, 1854 WL 1492 (Ga.)

(Cite as: 14 Ga. 438)

[12.] The meaning of this clause is-

1. That without the consent of Congress, a State
may tax imports for the purpose of executing her
Inspection Laws.

2. That the net produce of such a tax is for the U. S.

*2 3. That with the consent of Congress a State may
tax imports for any purpose.

4. That even without the consent of Congress, a
State may tax imports for any purpose, subject only
to a power in Congress to ‘revise’ and ‘control’
the Tax Law.

5. That the part of the clause giving the ‘net produce
’ to the U. S. applies only to Tax Laws for
inspection purposes.

[13.] Whether the Court is not bound to presume
that this Ordinance was passed for executing an
Inspection Law, may admit of a doubt.

[14.] Admitting it not to have been for inspection
purposes, yet it is to be presumed that Congress has
consented to it.

[15.] But if Congress has not consented to it, still it
is not void, but only subject to be revised and
controlled by Congress.

[16.] If void, it works no wrong to these plaintiffs.

Certiorari in Chatham. Application refused by
Judge FLEMING, at Chambers, Dec. 21st, 1853.

The City Council of the City of Savannah, passed
the following Ordinance: “And be it farther
ordained , that on the gross amount of sales of all
negroes, goods, wares and merchandize, or other
commodity, article or thing, sold within the
corporate limits of the City of Savannah, by any
person or persons whomsoever, upon or for a
commission, premium, per centage or other profit,
charged or to be charged thereon, or on joint
account, and when not included in the returns as
stock in trade, and whether for cash or credit,
between 24th January, 1842, and the last of April,

1842, and annually thereafter, between 1st May in
each and every year, and the last day of April in
each succeeding year, inclusive, there shall be paid
by the person so selling, whether commission
merchant, trader or agent, of any nature or kind
whatever, fifty cents on every hundred dollars of the
amount of such sales respectively”.

Padelford, Fay & Co. commission merchants,
refused to pay the tax upon goods and merchandize
imported into this State, and sold by them in the
original casks and packages, upon commission,
upon the ground that the laying of this tax was a
violation of the Constitution of the United States.
Upon certiorari before Judge Fleming , this
objection was overruled, and this decision is
assigned as error.

West Headnotes
Courts 106 £^97(1)

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Procedure

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The Supreme Court of Georgia is co-equal and
co-ordinate with the Supreme Court of the U. S.;
and therefore, the latter cannot give the former an
order, or make for it a precedent.

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106 Courts

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or as Precedents

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The supreme court of Georgia is co-equal and

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Page 4 of 51

14 Ga. 438 Page 3

14 Ga. 438, 1854 WL 1492 (Ga.)

(Cite as: 14 Ga. 438)

co-ordinate with the supreme court of the United
States, and not inferior and subordinate to that
court, and, therefore, the supreme court of the
United States has no jurisdiction to make for the
court of Georgia a precedent as to the construction
of the United States constitution.

Courts 106 €^391(1)

106 Courts

The appellate jurisdiction of the supreme court of
the United States, conferred by Const, art. 3, § 2,
does not extend to the state courts, but is confined
to the inferior courts mentioned in the preceding
section.

Commerce 83 €>^64

83 Commerce

8311 Application to Particular Subjects and

Methods of Regulation

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General. Most Cited Cases
If void, it works no wrong to these plaintiffs.

Commerce 83 ‘£^64

83 Commerce

8311 Application to Particular Subjects and

Methods of Regulation

8311(E) Licenses and Taxes

83k63 Licenses and Privilege Taxes

83k64 k. Mercantile Business in

General. Most Cited Cases

But if Congress has not consented to it, still it is not
void, but only subject to be revised and controlled
by Congress.

Commerce 83 €=^64

83 Commerce

8311 Application to Particular Subjects and

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8311(E) Licenses and Taxes

83k63 Licenses and Privilege Taxes

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Admitting it not to have been for inspection
purposes, yet it is to be presumed that Congress has
consented to it.

Commerce 83 3^*64

83 Commerce

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Methods of Regulation

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83k63 Licenses and Privilege Taxes

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General. Most Cited Cases

Whether the Court is not bound to presume that this
Ordinance was passed for executing an Inspection
Law, may admit of a doubt.

Commerce 83 ^^74.5(1)

83 Commerce

8311 Application to Particular Subjects and
Methods of Regulation

8311(E) Licenses and Taxes
83k74.5 Sales and Use Taxes

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Cases

A tax on “sales” is not a tax on commerce, nor a
regulation of commerce, within the prohibition of
the constitution of the United States.

Commerce 83 €^74.5(1)

83 Commerce

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Methods of Regulation

8311(E) Licenses and Taxes
83k74.5 Sales and Use Taxes

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A city ordinance levying a tax on moneys received
from commission sales of merchandise and personal
property is not unconstitutional on the ground that
when applied to goods brought from foreign states
and countries it interferes with interstate commerce,
as the tax is on the proceeds of the sale, and not on
the property, and does not attach until by the sale
the property has become mingled with the property
of the state.

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14 Ga. 438 Page 4

14 Ga. 438, 1854 WL 1492 (Ga.)

(Cite as: 14 Ga. 438)

Commerce 83 €^74.5(1)

83 Commerce

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Methods of Regulation

8311(E) Licenses and Taxes
83k74.5 Sales and Use Taxes

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With regard to validity of tax on sales imposed by
ordinance, the case of Brown v. State of Maryland,
25 U.S. 419, 12 Wheat. 419, 6 L.Ed. 678, is
overruled by the Passenger Cases, in 48 U.S. 283, 7
How. 283, 12 L.Ed. 702.

Commerce 83 C=^74.20

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The Ordinance of the City Council of Savannah, “
That on the gross amount of sales of all negroes,
goods, wares and merchandise or other commodity,
article or thing sold within the corporate limits of
the city of Savannah, by any person or persons
whomsoever, upon or for a commission, premium,
percentage or other profit charged or to be charged
thereon, or on joint account, and when not included
in the returns as stock in trade, and whether for cash
or credit, between the twenty-fourth day of January,
1842, and the last of April, 1842, inclusive, and
annually thereafter, between the first day of May in
each and every year, and the last day of April in
each succeeding year, inclusive, there shall be paid
by the person so selling, whether commission
merchant, broker or agent of any nature or kind
whatsoever, fifty cents on every hundred dollars of
the amount of such sales, respectively,” &c., is not
unconstitutional, according to the decision of the
Supreme Court of the U. S., in Brown v. State of
Maryland, 25 U.S. 419, 12 Wheat. 419, 6 L.Ed. 678.

Commerce 83 ^^77.10(1)

83 Commerce

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83k77.10(l) k. In General. Most

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The meaning of the clause of the United States
constitution referring to the taxation of imports, is:
(1) A state, without the consent of congress, may
tax imports, to execute her inspection laws. (2) The
“net produce” of such tax is to be for the use of the
United States treasury. (3) With the consent of
congress, a state may tax imports for any purpose.
(4) Even without the consent of congress, a state
may tax imports for any purpose, subject only to a
power in congress to revise and control the tax. (5)
The part of the clause requiring the “net produce,”
etc., to be for the use of the United States, applies
only to taxes on imports, laid for executing
inspection laws.

Commerce 83 €^77.10(1)

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8311(H) Imports and Exports
83k77 State Revenue Measures
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An ordinance levying a tax on certain sales is not
against the clause which prohibits the State to tax
imports.

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14 Ga. 438 Page 5

14 Ga. 438, 1854 WL 1492 (Ga.)

(Cite as: 14 Ga. 438)

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That the words used in it, if susceptible of more
meanings than one, were used in the meaning which
was least favorable to the delegation of power, and
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This sense is expressed by the four following
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General Government, or any department thereof, no
power by implication, but only delegated such
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That it delegated no exclusive power, unless the
delegation was said to be exclusive.

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14 Ga. 438 Page 6

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(Cite as: 14 Ga. 438)

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The tenth amendment to the constitution of the
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the state.

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Where a state law is alleged to conflict with the
provision in the federal constitution which forbids a
state to tax imports, it is the duty of the state courts
to make every presumption possible against the idea
that the state has violated the United States
Constitution.

LAW & BARTOW, for plaintiff in error.

GRIFFIN, for defendant in error.

By the Court. - BENNING J., delivering the opinion.
*3 But a single question is presented for decision in
this case; and that is, whether the Ordinance of the
City Council of Savannah violates the Constitution
of the United States.

The plaintiffs in error insist that it violates two of
the provisions of the Constitution-that which
declares that Congress shall have power “To
regulate commerce with foreign nations and among
the several States”; and that which declares that “
No State shall, without the consent of the Congress,
lay any imposts or duties on imports or exports,
except what may be absolutely necessary for
executing its Inspection Laws”.

The question is one of the utmost importance. The
State has passed many unconstitutional Tax Laws, if
this be unconstitutional. The great Tax Act of 1804,
declared that “Thirty-one and a quarter cents shall
be levied on every hundred dollars’ value of all
person’s stock in trade”.

Also, “That any non-resident who shall expose to
sale any goods in this State, shall, on his arrival, or
within seven days after entering the same, make
return,” &c.

The Act of 1821 declares that there shall be paid to
the State “A tax of thirty-one and a quarter cents on
every hundred dollars’ value of stock operated upon
by the Steamboat Company of Georgia”.

The Act of 1840 declares that the tax “On capital
employed in the business of Brokerage, and capital
employed by Insurance and Trust Companies, in
this State, shall be the thirty-one and a quarter cents
on every hundred dollars so invested”.

The Act of 1845 lays “On all agencies of Banks
authorized by other States , and kept within this
State, a tax of eight cents on every hundred dollars,
on the amount of exchange bought and sold”.

The Act of 1850 imposes a tax on “Each and every
agent of any foreign Bank or individual residing in
another State, doing business in this State”.

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14 Ga. 438 Page 7

14 Ga. 438, 1854 WL 1492 (Ga.)

(Cite as: 14 Ga. 438)

The same principle that will make the Ordinance of
the City Council unconstitutional, will equally make
these acts so. Indeed, if the Ordinance violates the
provision in the Constitution, as to the regulation of
commerce, it is not very easy to see what is left to a
State to tax. It can lay no tax that will not more or
less affect commerce; more or less prevent
consumption, and without consumption there can be
no commerce.

The question, then, deserves the most serious
consideration.

The question, it is insisted by counsel for plaintiff,
has been settled in their favor by the decision of the
Supreme Court of the U. S. in the case of Brown et
al. vs. Maryland , 12 Wheat. 419. That case,
therefore, will be noticed.

The case grew out of an Act of Maryland, “That all
importers of foreign articles or commodities of dry
goods, wares or merchandize, by bail or package, or
of wine, rum, brandy, whiskey and other distilled
spirituous liquors, &c. and other persons selling the
same by wholesale, bale or package, &c. should,
before they were authorized to sell, take out a
license, for which they should pay fifty dollars.

*4 The plaintiffs in the case “Imported and sold one
package of foreign dry goods, without having
license to do so.”

The Supreme Court determined that this Act was a
breach of each of the two clauses of the
Constitution which I have quoted.

In relation to its being a violation of the clause
which prohibits the States from laying any tax on
imports or exports, without the consent of Congress,
the Court, through Marshall, C. J. say, “It may be
conceded, that the words of the prohibition ought
not to be pressed to their utmost extent”. “But while
we admit that sound principles of construction
ought to restrain all Courts from carrying the words
of the prohibition beyond the object the
Constitution is intended to secure, that there must
be a point of time when the prohibition ceases, and
the power of the State to tax commences; we cannot
admit that this point of time is the instant that the

articles enter the country.” “It is sufficient for the
present to say, generally, that when the importer has
so acted upon the thing imported, that it has become
incorporated and mixed up with the mass of
property in the country, it has perhaps lost its
distinctive character as an import.” “This
indictment is against the importer, for selling a
package of dry goods in the form in which it was
imported, without a license. This state of things is
changed, if he sells them or otherwise mixes them
with the general property of the State, by breaking
up his packages and travelling with them as an
itinerant pedlar.”

The amount of this is, that although the mere
introduction of an import into a State does not make
it cease to be an import, yet, if the importer so act
upon it as to make it become incorporated and
mixed up with the mass of property in the country,
as by selling it or breaking up the package in which
it is contained, it does then cease to be an import;
and that as soon as it ceases to be an import, it may
be taxed by the State.

Is this case analagous to the one we are deciding? It
is not. It was a case in which the Law prohibited the
importer from selling the import. This is a case in
which the Law lets him sell the import, but lays a
tax on what he gets for it, on the gross amount of
money which he receives for it. Now this money, it
is, which is taxed. And it is something which “Had
been incorporated and mixed up with the mass of
property in the country.” Something as different
from “A package of dry goods, in the form in which
it was imported”, as that package, when sold, would
be different from itself, in the form in which it was
imported, or as that package, when broken up,
would be different from itself, before its being
broken up.

According to the principles, then, of Brown vs.
Maryland , the State can , rather than cannot , tax this
something-this money-the proceeds of the sale of
the imports.

*5 Again, the gross amount of sales are not the
exact equivalents to the seller of the things sold.
This amount is made of the cost of the goods sold
and of the seller’s profits, on them. Where do these

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14 Ga. 438 Page 8

14 Ga. 438, 1854 WL 1492 (Ga.)

(Cite as: 14 Ga. 438)

profits come from? They, at least, are not imports.
A tax on the gross amount of sales, is a tax, in part,
on these profits.

And all of the expenses to which the importer is put,
after his import gets into the country, to bring it to
sale, also enter into the gross amount of sales. His
agents, his store-houses, his insurers, all cost him
money. This cost he puts in the price of the import
when he sells it. Now cannot the State lay a tax on
these profits-these services of agents-these storages-
these insurances? A tax on the gross amount of
sales is a tax, in part, on these things. But a tax on
the naked import, is not a tax on any of them. I say
in part; but would not a Court be justified, in order
to save its State from the imputation of having
violated the Constitution, to presume that the whole
tax was intended to be on this part-the part of the “
gross amount of sales,” due to these several items,
and that the whole gross amount of sales was
adopted merely as a convenient measure of the tax.
Be this as it may, there is certainly a marked
difference between “imports” and the “gross
amount of the sales” of imports.

But the Ordinance is not confined to the gross
amount of the sales of imports. Imports are not
mentioned in it. It is a general Tax Law. It lays a tax
on the gross amount of sales of all negroes, goods,
wares and merchandize, or other commodity, article
or thing sold within the corporate limits of
Savannah, by any person, upon a commission, &c. “
Between the first day of May in each and every
year, and the last day of April in each succeeding
year”, &c.

The tax is upon the gross amount of the sales arising
from a whole year's business, and dealing in articles
of whatever kind.

This shows the intention to have been to put articles
of import, to say the least, upon no worse footing
than domestic products. And it is not said in Brown
vs. Maryland , that the State must discriminate in
favor of the foreigner, and not tax him when she
taxes her own citizens. But it is said, in that case, “
That in our complex system, the object of the
powers conferred on the government of the Union,
and the nature of the often conflicting powers

which remain in the States, must always be taken
into view, and may aid in expounding the words of
any particular clause”. Now, what was the object of
this prohibition? In a word, was the object to put
foreigners in a better condition than natives? We
know the object was not to put citizens of other
States in that better condition, for as to this, the
Constitution, in another clause, says-“The citizens
of each State shall be entitled to all privileges and
immunities of citizens in the several States”. They
shall be equal to citizens not better off than citizens.
If, then, the object was not to put foreigners in a
better condition than natives, the object was not to
prohibit such an Ordinance as this, for it merely
puts them upon the same footing as that of citizens.
But, indeed, the great object of this clause, as the
history of it shows, and to which I may hereafter
refer, was to prevent the seaboard States from
taxing the imports of the interior States, as those
imports passed through the former States to the
latter. To do this effectually, discriminating taxes
have to be laid upon such imports. But this is not a
discriminating tax.

*6 According, then, to the principles laid down in
Brown vs. Maryland , this Ordinance is not a
violation of the clause of the Constitution which
prohibits the States to tax imports.

Is it, according to those principles, a violation of the
power delegated to Congress, “To regulate
commerce with foreign nations and among the
States?” It is not. Those principles apply equally to
both clauses of the Constitution. If the “gross
amount of sales” is not an import, or not imports, it
is not any thing which belongs to foreign or
interstate commerce, and therefore, not any thing
falling under the power to regulate such commerce.

[1.] According, then, to the principles laid down in
Brown vs. Maryland , this Ordinance is not
unconstitutional. This is the opinion of every
member of this Court. But speaking for myself, I am
not willing to let the decision rest on this ground
alone. I do not wish to be considered, by
implication, as admitting that I think the decision in
Brown vs. Maryland to be right, or as admitting that
I think a decision of the Supreme Court of the U.S.
is a binding precedent for this Court. And I prefer,

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too, to put the decision upon the Constitution itself,
as I understand the Constitution, rather than upon
any decision. I shall, therefore, consider the case
further.

In my opinion, the following propositions are true:

1. The decision in Brown vs. Maryland , has been
overruled by the Supreme Court of the U. S. itself.

2. The Constitution is to be construed in the sense
in which it was understood by the makers of it at the
time when they made it.

3. According to this sense, the Supreme Court of the
U.S. has no appellate or other jurisdiction over this
Court, and cannot, therefore, make a precedent for
it.

4. According to this sense, Brown vs. Maryland ,
ought to be overruled, if it has not been.

5. And according to this sense, the decision of the
Court below, in this case, ought to be affirmed.

These are propositions of some import. I shall,
therefore, hold myself excused, if I go somewhat at
large, into the proofs by which I think they are
established. I, alone, am responsible for them, and
for all that may be said in their support. What the
other members of the Court may think of them, or
of anything I may say in their support, I know not.

1. Has Brown vs. Maryland been overruled? It has,
by several decisions of the Supreme Court; and
first, by the decisions in the License Cases. There
were three of those cases, one from New
Hampshire, one from Massachusetts, and one from
Rhode Island.

The facts in the N. Hampshire case were these: N.
Hampshire by law, forbade “Any person, without a
license, to sell wine, rum, gin, brandy, or other
spirits, in any quantity” .-Certain persons of the
name of Pierce, bought a barrel of gin in Boston,
brought it coastwise into N. Hampshire, and in N.
Hampshire sold it. For this they were indicted under
the aforesaid law, and were found guilty,
notwithstanding their insisting that the law violated

these same two provisions of the Constitution. They
took their case up to the Supreme Court of the U.
S.; and it affirmed the decision of the Court in N.
Hampshire. (5 How. 554.)

*7 Now this case is similar to that of Brown vs.
Maryland , in every material respect, except that the
article sold in it, was not an import from a foreign
nation, but from a neighboring State. But the
decision in Brown vs. Maryland , was declared to be
equally applicable to the case of importations from
a sister State. (12 Wheat. 449.)

To the extent, then, of ‘commerce’ and ‘imports' ‘
among the States' , this decision overrules Brown vs.
Maryland.- This, indeed, was admitted by the
counsel for plaintiffs in error, in the case now under
consideration.

The Massachusetts case grew out of a Law of that
State, which forbade the sale of liquors in less
quantity than twenty-eight gallons, without a
license. One Thurlows sold liquor in less quantities
than twenty-eight gallons; and some of it so sold,
was of foreign product. The Court in Massachusetts
first, and then the Supreme Court of the U. S., held
the Law to be no violation of the Constitution.

In the last Court, the case was argued by Webster,
Choate and Hallet, for the retailer; and in the
argument, we have Mr. Webster's and Mr. Choate's
exposition of Brown vs. Maryland. They rested
their argument exclusively upon that case. They say
the effect of the law was such, that in the county of
the plaintiffs residence, containing 100,000
inhabitants, no license had been granted for six
years.

And as to what Brown vs. Maryland decides, this is
what they say:

What is the extent of the effect of an Act of
Congress? Regarded as a license to, or contract with
the importer, communicating a right to sell,
according to the views in Brown vs. Maryland , 447,
what is its extent? The plaintiff contends that it
would be repugnant to, and in fraud of the license,
either to ordain that no one shall buy of the
importer; or to ordain that no one having bought,

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shall re-sell: because either prohibition would
totally defeat the license itself. The license is a
license to carry the article to market; to trade in it;
to have access with it to the consuming capacity of
the country.

The ground on which Congress legislate, in passing
such an Act, and the just expectations and
reasonings of the importer, prove this.

“The interception of the article, in the hands of the
first buyer, on its way to a market, excludes it from
market, and shuts the importer from the country as
really as if he were prohibited to sell.”

This is the view of Webster and Choate, as to
Brown vs. Maryland. And is it possible to doubt its
correctness?-“The license (the Act of Congress) is a
license to carry the article to a market, to trade in it,
to have access with it to the consuming capacity of
the country”; that is, to be allowed to sell by retail
Without retail, there can be no consumption worth
talking about. (5 How. 505, 513.)

*8 The decision in Brown vs. Maryland says, that
the States cannot prohibit the sale of imports by
wholesale. The reason of the decision equally says,
that they cannot prohibit the sale of imports by
retail.

Now the decision in this Massachusetts License
Case says, that the States may prohibit the sale of
imports, by retail-the reason of the decision equally
says, they may prohibit their sale by wholesale. This
reason is, that the States have power to stop the
consumption of the article. And this may be done
effectually by a prohibition of one sort of sale, as by
a prohibition of the other. The reason, then, on
which the decision in Brown vs. Maryland is made
to stand, is repudiated by this decision; and when
the reason of a decision is repudiated, the decision
itself is overruled. It is true, perhaps, that this ought
to be said at the time when the reason is repudiated;
otherwise, the ghost of the overruled case may
frighten the timid or mislead the weak.

The Rhode Island Case was not unlike the
Massachusetts Case.

These cases not only overrule the case of Brown vs.
Maryland ; but they establish just the opposite
principle to the one which it established. They
establish the principle that an article from abroad
ceases to be an import- ceases to be an article of
foreign commerce, the instant it enters, with the
permission of the government of the home territory.
And if it is ever to cease to be an import at all-ever
to lose its foreign attributes and become naturalized
, is not this the point of time at which the charge
must take place? The article undergoes no farther
transformation, except such as domestic articles
undergo. Why, then, should the time when the
change is to take place, be put off until the article
comes to second or third hands; or until it comes to
the consumer; or until it is broken up into
fragments. No reason appears for such
postponement. If postponed, the selection may as
well be of one of the points of time as of another.
There is nothing in them to justify a preference of
one to another. Not only so, but nothing is gained to
the importer or to anybody, by any such
postponement.

And this is the ground upon which the opinion of
one of the Judges is frankly put-Mr. Justice Daniel.
He says: “Imports in a political or fiscal, as well as
in common practical acceptation, are properly
commodities brought in from abroad, which either
have not reached their perfect investiture or their
ultimate destination, as property within the
jurisdiction of the State; or which still are subject to
the power of the Governemment, for a fulfilment of
the conditions upon which they have been admitted
to entrance: as for instance, goods on which duties
are still unpaid, or which are bonded, or in public
ware-houses. So soon as they are cleared of all
control of the Government which permits their
introduction, and have become the complete and
exclusive property of the citizen or resident, they
are no longer imports in a political, or fiscal, or
common sense.”

*9 It follows from this notion of an import, that the
right of sale is not an incident of an import.

This, indeed, is the necessary conclusion from what
was the actual decision of the whole Court, but it is
not expressed by any of the Judges, except Mr.

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Justice Daniel and Mr. Justice Woodbury. They
express it, each for himself. (5 How. 615, 616,
619.) The latter uses this strong languag Q-“It is
manifest , also, whether as an abstract proposition or
practical measure, that a prohibition to import is
one thing, while a prohibition to sell without a
license, is another and entirely different”.

It is true, the other Judges do not disavow, in words,
the principles of Brown vs. Maryland. They adopt a
different mode, but one which equally effects the
same object-the gentle mode of making a distinction
where there is not a difference-a mode long since
canonized by the courtesy or timidity of Courts, but
a mode which is a most fruitful source of litigation.
When a case is overruled, why ought it not to be
overruled effectually, so that it may no longer
mislead?

Mr. Chief Justice Taney , Mr. Justice Catron and
Mr. Justice Nelson , put their judgments chiefly, if
not altogether, upon the ground that the Laws of
Massachusetts and R. Island only interfere with the
retail selling of the article imported, after it has left
the hands of the importer, and not with the
wholesale selling of it while it remains in his hands.
But this, as we have seen, is sufficient to overrule
the whole case of Brown vs. Maryland. This takes
its life out of it.

Mr. Justice McLean and Mr. Justice Grier , also put
their decisions upon this ground, in part, and in part
upon the ground that the States retain a “police”
power, and that these Laws of Massachusetts and R.
Island, as well as those of N. Hampshire, were made
in the exercise of that power.

Now, if a Law, regulating the sale of wines and
spirituous liquors, is a Police Law, why is not a
Law, regulating the sale of any other commodity,
equally a Police Law? That wines and spirits are
ordinary articles of traffic- indeed, most important
articles of traffic, is known to all. At the time when
this decision was made, viz: 1847, the value of
imported wines and spirits amounted to over
$3,000,000, a value greater than that of any other
article of foreign commerce, except three or four.
They are made articles of traffic by the Commercial
Acts of Congress. If, therefore, a State, by virtue of

its Police Power, may regulate their sale,
notwithstanding those Acts, why may it not, by
virtue of the same power, regulate the sale of any
other article, made an article of traffic, by those
Acts? And if this be so, the amount of it is, that a
State may, by virtue of its Police Power , impose a
tax on the sale of any article brought into it from
abroad, as soon as it enters its territory, whether it
be in the hands of the importer or in the hands of
any body else. And this result is equally fatal to the
decision in Brown vs. Maryland.

*10 [2.] Upon the whole, it seems necessary to say
that the case of Brown vs. Maryland , is overruled
by these License Cases. And this effect have also
the decisions in the Passenger Cases.

These cases arose out of Laws made by
Massachusetts and N. York, respectively, which
Laws declared, in substance, that no alien passenger
should land on their shores, until he had paid a tax.

A question was made before the Courts of New
York and Massachusetts, respectively, whether
these Laws were not in violation of the aforesaid
two clauses of the Constitution. The Supreme Court
of New York decided that the N. York Law was not.
Its decision was appealed from, and the case was
carried before the Court of Errors of N. York. That
Court affirmed the decision.

The Supreme Court of Massachusetts, also, decided
the Massachusetts Law not to be unconstitutional.

Both cases were carried up to the Supreme Court of
the U. S. and that Court decided, by five Judges to
four, Justices Wayne, Catron, McLean, Grier and
McKinley , to Chief Justice Taney , Justices Nelson,
Daniel and Woodbury , that the Law was
unconstitutional.

The ground on which the majority put their decision
was, that as long as the passenger remained on
shipboard, he was to be considered an import, and
to belong to foreign commerce, which import
Congress had “regulated” by law, and that any tax
on it by a State, was both a tax upon an import and
a regulation of commerce, and was therefore
prohibited by each of the aforesaid clauses of the

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Constitution. They held, however, that as soon as
the passenger leaves the ship and lands and mingles
with the citizens of the State, he becomes a subject
of State taxation. Mr. Justice McLean said, “It is a
tax upon a commercial operation-upon what may, in
effect, be called an import. In a commercial sense,
no just distinction can be made, as regards the Law
in question, between the transportation of
merchandize and passengers. For the transportation
of both, the ship-owner realizes a profit, and each is
the subject of a commercial regulation by Congress.
When the merchandize is taken from the ship, and
becomes mingled with the property of the people of
the State, like other property, it is subject to the
local Law; but until this shall take place, the
merchandise is an import, and is not subject to the
taxing power of the State, and the same rule applies
to passengers. When they leave the ship and mingle
with the citizens of the State, they become subject to
its Laws". (7 How. 405.)

Of the other Justices, of the majority, Wayne and
McKinley concurred with McLean; and Catron , in
his opinion, also occupied this ground; and with
him concurred Grier. Catron said-“Again, give the
argument all the benefit it claims, concede the full
municipal power of the State to tax all persons
within her territory, as a general rule, whether they
have been there a year or an hour , and still she
could not impose a capitation tax on these
passengers, by the hand of her own tax collector.
The tax was demanded while they were on board".
(7 How. 447.) And again, “It is also insisted that the
States may tax all persons and property within their
respective jurisdictions, except in cases where they
are affirmatively prohibited. This is a truism not
open to denial. But Constitutional exceptions to the
State power, are so broad as to render the claim
valueless in the present instance. States cannot lay
export duties, nor duties on imports, nor tonnage
duties on vessels. If they tax the Master and crew,
they indirectly lay a duty on the vessel. If the
passengers on board are taxed, the protected goods,
the imports , are reached”. {Ibid. 452.)

*11 The position, then, of the majority is, that the
passenger, as long as he remains on shipboard,
continues to be an import and an article of foreign
commerce, not taxable by a State; but as soon as he

steps on land and mingles with the citizens, he
ceases to be an import, and ceases to belong to
foreign commerce, and becomes taxable by the
State on whose shores he steps. Now, in the case of
this “import,” there can be no “breaking of bulk,' no
opening of ““““““package,” no “sale by retail or by
wholesale,” after it enters the country, to effect this
change. The passenger-import-steps from ship to
shore; that makes the transformation. And why not?
there is but one step from the sublime to the
ridiculous. But according to Brown vs. Maryland ,
something has to be done, after the import gets on
shore , before it ceases to be an import. It does not
cease to be one the instant it enters the country.
Marshall , C. J. says: “But while we admit that there
must be a point of time when the prohibition ceases,
and the power of the State to tax commences, we
cannot admit that this point of time is the instant
that the articles enter the country”. The decision of
the majority, in these passenger cases being, that the
instant the import-the passenger-enters the country,
he becomes taxable by the State, that decision
necessarily overrules the decision in Brown vs.
Maryland.

Is it to be said that from the peculiarity of this
import-the dash of the human which it has in it-the
condition as to “breaking package” and so forth,
applicable to ordinary imports, to make them cease
to be imports, is to be dispensed with? Be it so; still,
there is left enough in the decision to overrule
Brown vs. Maryland. The point of the decision in
that case is, that a State has no power by which it
can defeat importations, and that a power to tax the
import whilst it is an import, is a power by which it
could defeat importations.

Now, as we have seen, a power to tax the article of
import, after it has ceased to be an import, by being
mixed “with the mass of property of the country”, a
power to tax it in any of its forms, divided or
undivided, or at any of its stages, including the last
stage, that of its consumption, is, if exerted, just as
effective to defeat its importation as is a power to
tax it whilst it is in the hands of the importer, and
before it has ceased to be an import; so, a power to
tax passengers after they have landed is, if exerted,
equally as effective to keep them from ever
landing-from ever thinking of trying to land-as is a

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power to tax them before they have landed.

But notwithstanding this, the majority of the Judges
consider the State to have the power to tax the
passenger, after he has landed and mingled with its
citizens; to have the power to pass a Law, the effect
of which would be, to prevent passengers from
landing at all; that is to say, to have a power by
which it can stop immigration-importation. This is
in the tush of Brown vs. Maryland.

*12 [3.] The decisions, therefore, in the passenger
cases, overrule Brown vs. Maryland.

[4.] The decision of the Supreme Court of the U.S.
in Groves et al. vs. Slaughter , affirms the principles
laid down by the same Court, in the New
Hampshire License Case, viz: that as to commerce
between State and State, the States may regulate,
provided they do not make any regulation which
shall be in conflict with some regulation of
Congress. (15 Peters , 510.) The question in Groves
et al. vs. Slaughter , was as to a State’s right to
prohibit the introduction of slaves into its limits, “as
merchandize or for sale.” The Court held, Baldwin
dissenting, that a State had this right. And would
any one maintain that a State had not equally this
right, with respect to the importation of slaves from
Africa or Cuba? Yet, if Brown vs. Maryland be
Law, a State could not do that. That could only be
done by Congress.

But if the case of Brown vs. Maryland has not been
overruled I think it should be. I consider it to be a
decision not warranted by the Constitution.

[5.] Whether it is or not, is therefore a question
which I now proceed to discuss. In discussing it, I
shall assume one proposition to be true, that the
Constitution, like every other instrument made by
men, is to be construed in the sense in which it was
understood by the makers of it at the time when
they made it. To deny this is to insist that a fraud
shall be perpetrated upon those makers or upon
some of them.

Can the sense in which the makers of the
Constitution understood it at the time they made it,
be now ascertained? The Constitution was made by

conventions, of the States called for the purpose of
examining its meaning, and of adopting or rejecting
it according as they liked that meaning or disliked
it. These conventions were, in the great majority of
cases, divided into two parties, one in favor of
adopting the Constitution, and the other against
adoption unless it should be amended. These parties
debated the important clauses of the Constitution
and otherwise manifested their sense of its meaning.
The proceedings of a large majority of these
conventions are preserved. They are to be found in
Elliot’s Debates. This, then, is one source from
which the sense in which the makers of the
Constitution understood it is to be drawn.

How from this source? It is manifest, that what the
party friendly to adoption said, was the meaning of
the Constitution, was the meaning which they
understood it to have, was the meaning which the
makers of the Constitution understood it to have;
for they being the majority were the makers of it.
Now these debates and proceedings show what the
party friendly to the adoption of the Constitution
said was this meaning.

They also contain the acts of ratification and the
propositions and recommendations for amendment
of the Constitution-of its makers. These all throw
light on the subject.

*13 There are other sources from which evidence
may be drawn, such as the contemporary and
continued Acts of the States, showing their view of
the meaning of the Constitution, and the
manifestations of popular sentiment about the time
of the adoption of the Constitution, or soon
afterwards, and since, showing what the people
thought in respect to its meaning.

The question what the makers of the Constitution
meant by the instrument which they made, is
eminently a question of fact. It is, in its own nature,
in the highest degree historical. To get the meaning
fully, we must have a view of the Act-the actors and
the circumstances-we must see the instrument
itself-the makers of the instrument-and the facts
standing around the instrument.

I pretend not to see all this-still I think I see some of

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it, and what I see I shall attempt to bring forward.

It will appear, I think, from the evidence which I
shall produce that the sense in which the makers of
the Constitution understood it, when they made it, is
expressed in the following propositions:

1. That the Constitution delegated to the General
Government or any department thereof, no power
by implication , but only delegated such powers as it
expressly enumerated.

2. That it delegated no exclusive power, unless the
delegation was said to be exclusive.

3. That it laid no prohibition upon the States, except
such as it specified.

4. That the words used in it, if susceptible of more
meanings than one, were used in the meaning which
was least favorable to the delegation of power, and
most favorable to its retention.

Let us, then, go to the proofs. And first, to those
contained in the debates and proceedings of the
State Conventions which agreed to the Constitution.
In these proofs will be found evidence to apply to
all of the four propositions, but exponently to the
first, second and third. I shall not, in every instance,
stop to show the application of the evidence to the
particular point to which it will apply.

Let us commence with the convention of
Massachusetts.

In this convention, Parsons, a friend to the adoption
of the Constitution, and after its adoption, the most
distinguished Judge that Massachusetts ever had,
said, “It was objected that by giving Congress a
power of direct taxation, we give them power to
destroy the State Governments by prohibiting them
from raising any moneys: but this objection is not
founded in the Constitution. Congress have only a
concurrent right with each State in laying direct
taxes- not an exclusive right-and the right of each
State is equally extensive and perfect as the right of
Congress. Any law, therefore, of the U.S. for
securing to Congress more than a concurrent right
with each State is usurpation and void.” (2 Ell Deb.

93.)

The paragraph which provides “That the writ of
habeas corpus shall not be suspended, unless in
cases of rebellion or invasion” “Was read, when,
after a question by Gen. Thompson, Hon. Mr.
Adams, in answer to an inquiry of the Hon. Mr.
Taylor, said, that this power, given to the General
Government, to suspend this privilege in cases of
rebellion and invasion, did not take away the power
of the several States, to suspend if they shall see fit”
(2 Ell. Deb. 108.)

*14 So Judge Sumner, “Congress have only power
to suspend the privilege to persons committed by
their authority. A person committed under the
authority of the States will still have a right to this
writ.” (Id. 109.)

After the debate had come to a close, “Mr. Parsons
moved that this Convention do assent to and ratify
this Constitution.”

This motion seems to have been received with
doubtful favor. Gen. Heath, after some strong
appeals to the Convention for a union,
acknowledged, “But I have observed from the first,
that many gentlemen appeared opposed to the
system; and this, I apprehend, arises from their
objections to some particular parts of it. Is there not
a way in which their minds may be relieved from
embarrassment? I think there is”. And then he
proceeded to state the way which was to ratify the
Constitution as it was, and at the same time propose
amendments to it, to meet the objections to it. (2
Ell. Deb. 122.)

After Gen. Heath sat down, his Excellency the
President, (who was John Hancock) rose and
observed, “That unfortunately, through painful
indisposition of body, he had been prevented from
giving his attendance in his place; but from the
information he had received, and from the papers,
there appeared to have been a great dissimilarity of
sentiments in the Convention. To remove the
objections of some gentlemen, he felt himself
constrained, he said, to hazard a proposition for
their consideration. My motive, says he, arises from
my earnest desire to this Convention, my

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fellow-citizens and the public at large, that this
Convention may adopt such a form of Government
as may extend its good influence to every part of the
United States, and advance the prosperity of the
whole world. His situation, his Excellency said, had
not permitted him to enter into the debates of the
Convention-// however appeared to him necessary ,
from what had been advanced in them, to adopt the
form of Government proposed; but observing a
diversity of sentiment in the gentlemen of the
Convention, he had frequently had conversation
with them on the subject; and from this
conversation, he was induced to propose to them
whether the introduction of some general
amendments would not be attended with the
happiest consequences. For that purpose, he should,
with the leave of the Honorable Convention, submit
to their consideration a proposition, in order to
remove the doubts and quiet the apprehensions of
gentlemen.”

He then read his propositions-the first of them was
in the following words: “First, that it be explicitly
declared, that all powers not expressly delegated by
the aforesaid Constitution, are reserved to the
several States, to be by them exercised.”

These propositions being thus submitted to the
Convention, John Adams moved that they should be
taken under considertion by the Convention. (2 Ell
120, 121, 122, 123, 125.)

*15 He prefaced his motion with a speech, in which
these words are to be found: “Mr. President, I feel
myself happy in contemplating the idea that many
benefits will result from your Excellency’s
conciliatory proposition to this Commonwealth and
to the United States; and I think it ought to precede
the motion made by the gentleman from
Newberryport, (Parsons, the motion being to ratify
the Constitution) and to be at this time considered
by the Convention. I have said that I have had my
doubts of this Constitution. I could not digest every
part of it as readily as some gentlemen; but this sir,
is my misfortune- not my fault. Other gentlemen
have had their doubts; but in my opinion, the
proposition will have a tendency to remove such
doubts, and to conciliate the minds of the
Convention and the people without doors.” “I have

observed the sentiments of gentlemen on this
subject, as far as Virginia; and I have found that the
objections were similar in the newspapers, and in
some of the Conventions.” (2 Ell Deb. 123-4.)

This motion was debated; and Mr. Adams again
spoke.-He said, among other things, “Your
Excellency’s first propotion is, That it be explicitly
declared, that all powers not expressly delegated to
Congress, are reserved to the several States, to be
by them exercised.’ This appears to my mind to be
a summary of a bill of rights, which gentlemen are
anxious to obtain. It removes a doubt which many
have entertained, respecting the matter.” “It is
consonant with the second article in the present
Confederation. ” (Id. 131.)

Parsons, Dana, Strong and others, warm friends of
the Constitution, earnestly urged the adoption of the
proposition.

At length the proposed amendments were referred
to a committee. This committee reported a form of
ratification applicable to the Constitution; and
added to the form these words: “And as it is the
opinion of this Convention , that certain amendments
and alterations in the said Constitution, would
remove the fears and quiet the apprehensions of
many of the good people of this Commonwealth,
and more effectually guard against an undue
administration of the Federal Government, the
Convention do therefore recommend that the
following alterations and provisions be introduced
into the said Constitution: First, that it be explicitly
declared , that all powers not expressly delegated by
the aforesaid Constitution, are reserved to the
several States, to be by them exercised.”

Then follow eight others-then is added: “And the
Convention do, in the name and in the behalf of the
people of this Commonwealth, enjoin it upon their
representatives in Congress , at all times, until the
alterations and provisions aforesaid have been
considered agreeably to the 5th article of the said
Constitution, to exert all their influence, and use all
reasonable and legal methods to obtain a ratification
of the said alterations and provisions, in such
manner as is provided in said article.”

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*16 The question was then put, whether the
Convention would accept of this report; and it was
decided in the affirmative, by a close vote, viz: 187
to 168. {Id. 176-7-8.)

It is apparent, from these few extracts, that there
was a very strong opposition to the Constitution-one
so strong as to make it extremely doubtful whether a
majority could be obtained for its adoption. This
opposition, it appears too, all rested on objections
which resolve themselves into this: the State was
giving up too much power to the General
Government; especially as there was some room to
doubt the extent of some of the grants of power. It
is evident that power was a thing which the
Convention wished to give, in the very least
possible quantity; and it is equally evident that they
were anxious to remove everything from which the
unscrupulous might argue that they had granted
more power than they had actually expressed in the
grant. Hence, they were not satisfied with
assurances from the friends of the Constitution, that
the States would have ‘concurrent’ power with the
General Government, as to taxes; the habeas corpus,
&c.; and that this concurrent power would be “
perfect'-that is to say, notwithstanding assurances
that it was necesssarily to be implied that no power
was given to the General Government, except such
as was expressly given; and none given exclusively ,
except it was said to be exclusive. These friends had
to go farther: they had to agree to enjoin it upon
their Representatives in Congress, “To exert all
their influence, and use all reasonable and legal
methods to obtain a ratification of said alterations
and provisions”, one of which was, as we have seen,
“That it be explicitly declared , that all powers not
expressly delegated by the aforesaid Constitution,
are reserved to the several States , to be by them
exercised.”

The meaning of this article plainly is, that although
it is already , as we think, impliedly declared that all
powers not expressly “delegated” “are reserved”,
yet we want it also expressly declared.

So much for the sense in which Massachusetts
understood the Constitution, when she agreed to it.
Let us proceed to Connecticut.

We have only a fragment of the Connecticut debates
on the question of the adoption of the Constitution.
That contains, in all, four or five speeches only; but
among them, two of Oliver Ellsworth, who had been
a member of the Convention which framed the
Constitution, and who was to be Chief Justice of the
Supreme Court of the United States. He said, “The
first objection is, that this clause, (the power to lay
and collect taxes, &c.) extends to all the objects of
taxation. But though it does extend to all, it does not
extend to them exclusively. It does not say Congress
shall have all these sources of revenue, and the
States none; all excepting the impost, still lie open
to the States ”. (2 Ell. Deb. 190.)

*17 Here is an admission, that a grant of a power to
tax every person and thing taxable, and to tax them
without limit, is not an exclusive grant-is not a grant
of the whole taxing power, but only of half of it; an
admission that, notwithstanding such a grant, as
much power is retained as is granted. That is to say,
an admission that although just as much power to
tax is given to the General Government, as by the
use of language can be given it; yet, it is not to be
implied from thence that equally as much power is
not retained by the States; that unless it were also
expressly said in the Constitution this power is
exclusively granted to Congress, or prohibited to the
States, the States have it concurrently. Now if, from
such a grant as this, no implication was to be made
in favor of the General Government, or against the
States, was not the Convention obliged to infer that
such an implication could not be made from any
merely affirmative grant; such, for instance, as the
grant to regulate commerce.

Taking, then, Judge Ellsworth as a true exponent of
the idea of the Constitution entertained by the
Convention of Connecticut, we must say that that
idea was much the same as the idea of the
Massachusetts Convention. Let us pass to N.
Hampshire.

We have no debates of the Convention of this State,
and only the fragments of one speech, and that
confined to the slavery clause; but we have, in the
form of ratifying the Constititution, matter from
which we may infer what was the understanding of
the Convention, as to the meaning of the

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Constitution when they agreed to it. They adopt the
Massachusetts form, including the proposed
amendments and the injunction upon their members
in Congress, to use their best efforts to get the
amendments made. They, therefore, had the same
understanding, as to this meaning, which
Massachusetts had. And what that was we have
seen. (1 Ell. Deb. 325, 6.)

Let us, then, come to the great State of N. York.

The question of adopting the Constitution, was
ardently debated in the Convention of this State,
and the division of parties on it, was almost equal.

The friends of adoption urged, in respect to the
great power of taxation, that it would be concurrent.
To this, Williams, an opposer of adoption,
answered, “Suppose, however, that the States have
concurrent jurisdiction with Congress, in taxation, it
is evident, as the Laws of Congress are the Supreme
Laws of the land, that their taxes, whenever they
interfere with the taxes laid by the States, must and
will claim a priority as to the collection; in fact, that
they may, in order to pass the Laws necessary for
the end, abolish the State taxes ”.

This brought Alexander Hamilton to his feet. He
combatted this idea most vehemently. He said, “
With regard to the jurisdiction of the two
Governments, I shall certainly admit that the
Constitution ought to be so formed as not to prevent
the States from providing for their own existence;
and I maintain that it is so formed. This is conceded
by one gentleman, and in the next breath the
concession is retracted. He says Congress have but
one exclusive right in taxation; that of duties on
imports. Certainly, then, their powers are only
concurrent. But to take off the force of this obvious
conclusion, he immediately says that the laws of the
U.S. are supreme, and that where there is one
supreme, there can be no concurrent authority. And
further, that where the Laws of the Union are
supreme, those of the State must be subordinate,
because there cannot be two supremes. This is
curious sophistry. That two supremes cannot act
together is false. They are inconsistent only when
aimed at each other, or at an indivisible object. The
Laws of the United States are Supreme, as to all

their proper Constitutional objects. The Laws of the
States are supreme in the same way. Suppose both
Governments should lay a tax of a penny on an
article, had not each an independent and
uncontrollable power to collect its own tax? The
meaning of the maxim-there cannot be two
supremes-is simply this: two powers cannot be
supreme over each other”. That is to say, that with
respect to one concurrent power, that of taxation,
the General Government cannot be supreme over
the State Governments, nor the latter supreme over
the former; and if this is true of one such power, it
is true of all; and as nearly all of the granted powers
are such, it must be true of nearly all the granted
powers-Legislative, Executive and Judicial. This
inference was too obvious for the Convention not to
have made it.

*18 This touch of State rights was displayed, it is to
be remembered, however, before the Constitution
was adopted; and in order to make it palatable to
the States, and so get them to swallow it. (2 Ell.
Deb. 355, 6.)

Not satisfied with this, he returns to the subject next
day. He enlarges; he becomes more emphatic; he
illustrates, and he generalizes. The speech is a most
noteworthy one. I shall indulge myself in citing it
somewhat fully. He says- “Sir, with respect to the
subject of revenue, which was debated yesterday, it
was asserted, that in all matters of taxation except in
the article of imposts, the united and individual
States had a concurrent jurisdiction, and that the
State Governments had an independent authority to
draw revenues from every source but one. The truth
of these positions will appear on a slight
investigation. I maintain that the word supreme
imports no more than this: that the Constitution and
Laws, made in pursuance thereof, cannot be
controlled or defeated by any other Law. The Acts
of the United States, therefore, will be absolutely
obligatory, as to all the proper objects and powers
of the General Government. The States, as well as
individuals, are bound by these Laws; but the Laws
of Congress are restricted to a certain sphere, and
when they depart from this sphere, they are no
longer supreme or binding. In the same manner, the
States have certain independent powers, in which
their Laws are supreme; for example, in the making

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and executing Laws concerning the punishment of
certain crimes, such as murder, theft, &c. the States
cannot be controlled. With respect to certain other
objects, the powers of the two Governments are
concurrent, and yet supreme. I instanced, yesterday,
a tax on a specific article. Both might lay the
tax-both might collect it, without clashing or
interference. If the individual should be unable to
pay both, the first seizure would hold the property.
Here, the Laws are not in the way of each other;
they are independent and supreme.

“The case is like that of two creditors: each has a
distinct demand; the debtor is held equally for the
payment of both. Their suits are independent, and if
the debtor cannot pay both, he who takes the first
step secures his debt. That the States have an
undoubted right to lay taxes in all cases in which
they are not prohibited, is a position founded on the
obvious and important principle in Confederated
Governments, that whatever is not expressly given
to the Federal Head, is reserved to the members.
The truth of this principle must strike every
intelligent mind. In the first formation of
Government, by the association of individuals,
every power of the community is delegated, because
the Government is to extend to every possible
object; nothing is reserved but the inalienable rights
of mankind; but when a number of these societies
unite for certain purposes, the rule is different , and
from the plainest reason; they have already
delegated their sovereignty and their powers to their
several Governments; and these cannot be recalled
and given to another, without an express Act. I
submit to the committee, whether this reasoning is
not conclusive ”. (Ibid, 361, 2, 3.)

*19 This is plain talk. “Whatever is not expressly
given to the Federal head is reserved to the members
”. This is applicable not merely to the tax clause. It
covers the whole of the powers spread out in the
Constitution. And it comes from the very highest
quarter. Col. Hamilton was the first man of his day
of his party. He had been too a member of the
Federal convention which framed the Constitution,
and he entirely knew , as much as any living man,
what were the purposes and objects of those who
were the chief architects of that instrument in that
Convention, as well as what were the fears and

doubts of those who were not its chief architects.
And in order to get the great State of New York to
adopt it when the question of adoption is a touch
and go one, he tells it in his place in this manner so
passionately earnest that the Constitution conveys to
the General Government no power except such as is
expressly granted. Can falsehood be imputed to
Alexander Hamilton? If it cannot, this was the truth
of the case, for he was not deceived himself.

But if he were, can there be a doubt that such a
declaration as this did not make its impression on
those who heard it-that in a word, in adopting the
Constitution, the adopters did not take it as having
this meaning. And if they so understood it and were
made so to understand it by him and his friends (for
none of those uttered a word of dissent) so it is to be
understood.-That is the meaning which they agreed
to.

What was said by Chancellor Livingston and by
John Jay went to confirm these declarations of
Hamilton’s. (2 Ell. Deb. 346, 381.)

Even with all this the Convention could barely be
induced to agree to the Constitution. The vote was
thirty-nine in favor of it to thirty-six against it. And
the ratification itself was exceedingly circumspect
and guarded. It was preceded by a declaration of
principles generally, and of principles applicable
especially to the instrument they were about to
agree to. It declared, among other things, “That the
powers of Government may be re-assumed by the
people whensoever it shall become necessary to
their happiness, that every power, jurisdiction and
right which is not by the said Constitution clearly
delegated to the Congress of the United States, or
the departments of the government thereof remains
to the people of the several States, or to their
respective State governments, to whom they may
have granted the same, and that those clauses of the
Constitution which declare that Congress shall not
have or exercise certain powers, do not imply that
Congress is entitled to any powers not given by said
Constitution, but such clauses are to be construed
either as exceptions to certain specified powers, or
as inserted merely for greater caution”. That is, no
power is to be held to be conveyed by implication.

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After going through with the declaration of rights,
the form of ratification proceeds thus: “Under these
impressions, and declaring that the rights aforesaid
cannot be abridged, and that the explanations
aforesaid are consistent with the said Constitution”,
&c. We do assent to and ratify the said Constitution.

*20 Now, the question is, did the New York
Convention, in agreeing to the Constitution, think it
was giving away to the General Government more
of the power of New York State than Alexander
Hamilton told them they were giving- more, in a
word, than they were asked to give? They were told
by Hamilton that it is an “Obvious and important
principle in confederated governments, that
whatever is not expressly given to the Federal head,
is reserved to the members.” The Convention then
was only requested to give such powers as were
expressed and no others. This was the extent of the
request. Is it to be presumed that the Convention,
exceedingly suspicious as they were of the
Constitution, at first gave more than they were
requested to give?

If by any possible straining of words that could be
presumed, the presumption would be rebutted by
the form of the ratification. When this form says “
That those clauses in the said Constitution which
declare that Congress shall not have or exercise
certain powers, do not imply that Congress is
entitled to any powers not given by the said
Constitution.” It says that no clauses in it shall do
this; for if an implication of a grant cannot be drawn
from these clauses, still less can it be drawn from
any other: and this is the same as saying that no
implied power is granted to Congress: but only
express powers are granted.

This, then, is what New York understood she was
doing, when she agreed to the Constitution, viz: that
she was giving to the General Government the
powers expressed in the instrument, but no
others-not one implied power; and that she was
giving no expressed power exclusively, unless it
was said to be exclusive.

Let us pass on to another State’s proceedings,
Pennsylvania.

In the Convention of this State for ratifying the
Constitution, the friends of the Constitution seem to
have had the field of debate pretty much to
themselves-and of those friends, Judge Wilson, who
had been a leading member of the Federal
Convention which framed the Constitution, the
member who, probably, next to Madison, had the
greatest share in framing it as it was framed,
appears to have been eminently conspicuous.

McKean, who was afterwards Chief Justice of the
State, made a speech or two. One of his speeches
was elaborate and careful. I shall quote from him
and Wilson to show what meaning they told the
Convention the Constitution had when persuading
the Convention to agree to it.

In this Convention, as in those of the other States
which have been noticed, it seems to have been a
prominent objection to the Constitution that it
contained no bill of rights. In answer to this, Wilson
says in one place, “It is urged as a general objection
to this system that the powers of Congress are
unlimited and undefined, and that they will be the
judges in all cases of what is necessary and proper
for them to do.” “To bring this subject to your view,
I need do no more than point to the words in the
Constitution, beginning at the 8th Sec. Art. 1st. “
The Congress (it says) shall have power,” &c. I
need not read over the words, but I leave it to every
gentleman to say whether the powers are not
accurately and minutely defined as can well be done
on the same subject in the same language. The old
Constitution is as strongly marked on this subject,
and even the concluding clause, with which so
much fault has been found, gives no more or other
powers, nor does it in any degree go beyond the
particular enumeration; for when it is said that
Congress shall have power to make all laws which
shall be necessary and proper, those words are
limited and defined by the following: “For carrying
into execution the foregoing powers It is saying
no more than that the powers which we have
already particularly given shall be effectually
carried into execution.” (2 Ell. Deb. 468.) And
again, “ Eodem die P. M. he said, “Whoever views
the matter in a true light, will see that the powers
are as minutely enumerated and defined as was
possible , and will discover that the general clause

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against which so much exception is taken, is
nothing more than what was necessary to render
effectual the particular powers that are granted. And
again “Can any cause of distrust arise here? Is there
any increase of risk? or rather are not the
enumerated powers as well defined here as in the
present articles of Confederation? {Ibid. 481, 2.)

*21 Now be it remembered that the “present articles
of confederation” had in them this distinct article:

ARTICLE II.

Each State retains its sovereignty, freedom and
independence, and every power, jurisdiction and
right which is not by this Confederation expressly
delegated to the United States in Congress
assembled”.

Judge Wilson then means to persuade the
Convention he is addressing, that although this
clause is not contained in the new instrument, yet
the powers intended to be delegated by that
instrument are no greater or other than they would
be if it were contained in the instrument-agreeing,
doubtless, with Hamilton, that “In Confederated
Governments, whatever is not expressly given to the
Federal head, is reserved to the members.”

Indeed, all the rest of what has been quoted from
him and much more that has not been quoted,
amounts to the same thing. Could the Convention be
supposed to doubt Wilson in respect to this point?
especially when he was seconded by Judge McKean
in this style. As to the objection that there was no
bill of rights, Judge McKean said “Again, because it
is unnecessary; for the powers of Congress being
derived from the people in the mode pointed out by
this Constitution, and being therein enumerated
(that is, expressed ONE BY ONE) and positively
granted, can be no other than what this positive
grant conveys. {Locke on Government, vol. ii b. 2,
chap. 2. sec. 140, and in the 13 th chap. sec. 152. 2
Ell. Deb.)

With this exposition of the meaning of the
Constitution, by these two distinguished friends of
it, (Wilson was afterwards a Judge of the Supreme

Court of the U. S.) the Con vention of Pennsylvania
adopted it. And can it be doubted that the
Convention understood the Constitution in this
sense.

Let us pass to another State, N. Carolina. In the
Convention for ratifying the Constitution in that
State, Mr. Maclaine, replying to those who objected
to the Constitution, that it contained no bill of
rights, said, “It would be very extraordinary to have
a bill of rights, because the powers of Congress are
expressly defined, and the very definition of them is
as valid and efficacious a check, as a bill of rights
could be, without the dangerous implication of a bill
of rights. The powers of Congress are limited and
enumerated again: “It is as plain a thing as possibly
can be, that Congress can have no power , but what
we EXPRESSLY give them. (4 Ell. Deb. 140-1.)

Gov. Johnston, the President of the Convention, in
answer to the same objection, said, “The Congress
cannot assume any other powers than those
expressly given them, without a palpable violation
of the Constitution. {Ibid, 142.)

Judge Iredell, who had been a member of the
Federal Convention, for drafting the Constitution,
and who was to become a Judge of the Supreme
Court of the U.S., and who was in himself, a man of
clear head, replying to the same objection, said, “Of
what use therefore, can a bill of rights be in this
Constitution, where the people expressly declare
how much power they do give; and consequently
retain all they do not? It is a declaration of
particular powers by the people to their
representatives for particular purposes. It may be
considered as a great power of attorney , under
which no power can be exercised, but what is
expressly given. Did any man ever hear before, that
at the end of a power of attorney, it was said the
attorney should not exercise more power than was
there given him.” Is not this the true idea of all
Constitutions? They are instruments by which
principals - people-confer power-powers upon
servants, agents , presidents, members of
Congress-Judges. These have but a naked authority
-one coupled with no interest-one founded on no
consideration; one, therefore, which is to be
construed strictly. In a dispute between the principal

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and agent, as to the meaning of the power of
attorney, does it lie in the mouth of the agent, to
pronounce what is the meaning? Just the opposite.
The principal may, at will, revoke the whole power;
may he not, then, do the lesser thing-interpret its
meaning?

*22 In spite, however, of all that the friends of the
Constitution could say, the Convention actually
rejected it, by a great majority-by 184 to 84.

The Convention determined that the Constitution
ought to be amended, before it should be agreed to
by N. Carolina; and that it ought to be amended so
as to contain these, among other things:

“1. That each State in the Union shall respectively
retain every power, jurisdiction and right which is
not, by this Constitution, delegated to the Congress
of the United States, as to the departments of the
Federal Government.”

“17. That those clauses which declare that Congress
shall not exercise certain powers, be not interpreted
in any manner to extend the power of Congress; but
that they be construed either as making exceptions
to the specified powers where this shall be the case,
or otherwise, as inserted merely for greater caution.”
(Id. 244-6.)

Notwithstanding that the friends of the Constitution
told the Convention that this was all that the
Constitution meant as it stood unamended, the
majority would not be satisfied, but insisted upon
having it so nominated in the bond.

Afterwards N. Carolina, by Convention, agreed to
the Constitution. But it is not to be presumed that
she considered the Constitution to convey to the
General Government more powers than its friends,
Maclain, Johnston and Iredell, being the
spokesmen, represented it to convey; that is to say,
more than the express powers.

We have only three or four speeches made in the
Convention of South Carolina, which ratified the
Constitution; and they not very pertinent to the
point under consideration. But we are at no loss to
know what that State considered herself as giving to

the General Government, when she agreed to the
Constitution. We may know this from two sources.
First, from the form of ratification. The ratification
was preceded by this declaration, “This Convention
doth also declare, that no section or paragraph of
the said Constitution warrants a construction that
the States do not retain every power not expressly
relinquished by them, and vested in the General
Government of the United States”. (1 Ell Deb. 325.)

Second. From the action and debates of the
Legislature which called the State Convention for
ratifying the Constitution. That Legislature debated
the Constitution itself, at considerable length,
before it would ever make a call of such a
Convention. That Legislature was composed of
some of the first men of the State. Among them
were Charles Pinckney, Charles Cotesworth
Pinckney, John Rutledge and Pierce Butler, the
members from South Carolina to the Federal
Convention which drafted the Constitution. These
were all friends of the Constitution. In persuading
the Legislature to make the call, and in answer to
objections to the Constitution, that it does not
guaranty liberty of the press, Gen. Pinckney said, “
The General Government has no powers but what
are expressly granted to it”. (4 Ell. Deb. 315.) No
friend of the Constitution said nay to this. The
Legislature, therefore, determined to call the
Convention, and did call it; and that Convention
agreed to the Constitution, in the manner above
stated.

*23 The S. Carolina Convention then took the
Constitution to convey only express powers.

Rhode Island, like N. Carolina, would not, for a
long time, accept the Constitution at all. When she
did accept it, she accompanied the act with certain
explanations and declarations; which explanations
she declared to be consistent with the Constitution.
Among them was this: “That the rights of the States,
respectively to nominate and appoint all State
officers, and every other power, jurisdiction and
right, which is not, by the said Constitution, clearly
delegated to the Congress of the U.S., or to the
departments of the Government thereof, remain in
the people of the several States, or their respective
State Governments, to whom they may have granted

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the same; and that those clauses in the Constitution,
which declare that Congress shall have or exercise
certain powers, do not imply that Congress is
entitled to any power not given by the Constitution;
but such clauses are to be construed as exceptions
to certain specified powers , or as inserted merely
for greater caution.”

Rhode Island, like the rest, thought, in agreeing to
the Constitution, she was giving only such powers
as she mentioned expressly.

Let us pass to the great State of Virginia.

It was only after a mighty struggle, that the friends
of the Constitution could induce the Convention of
Virginia to adopt the Constitution at all. Patrick
Henry, George Mason, James Monroe, Grayson,
and other distinguished men opposed its adoption,
without previous amendments. Pendleton, Nicholas,
Randolph, Marshal, afterwards C. Justice of the S.
Court of U.S., Madison, and others of note, urged
its adoption. After a protracted debate, and pledges
on the part of its friends, that certain amendments
should be made to it, if they could cause that to be
done, it was accepted; but with a declaration
accompanying the act, showing very clearly, that
the Convenvention did not consider the Constitution
as conferring on the General Government any
powers but those expressed in it.

But what power did its friends say it conveyed,
when they were engaged in the business of
persuading the Convention to take it? Let them
speak for themselves.

Mr. Tyler had said-“Suppose that the time should
come that a King should be proposed by Congress?
Will they not be able, by the sweeping clause, to
call in foreign assistance and do whatever they think
proper, to carry this proposition into effect?

To this Mr. Madison replied, “With respect to the
supposed operation of what was denominated the
sweeping clause, the gentleman, he said, was
mistaken; for it only extended to the enumerated
powers. Should Congress attempt to extend it to any
power not enumerated , it would not be warranted
by the clause”. (3 Ell Deb. 455.)

The “sweeping clause” is the one which declares
that Congress “Shall have power to make all Laws
which shall be necessary and proper for carrying
into execution the foregoing power”, &c.

*24 What Mr. Madison says, amounts, then, to this:
that this clause does not give Congress power to

make any Law for carrying into execution any

power that is not “enumerated” in the Constitution:
that is to say, for carrying into execution any

implied power.

And this is the same as saying the Congress has no
implied powers at all; far it is saying, that if they
have implied powers, they yet have no power to
carry them into effect-the clause giving Congress
power to carry powers into effect, not extending to
implied powers.

Again he said, “As to a solemn declaration of our
essential rights, he thought it unnecessary and

dangerous-unnecessary, because it was evident that
the General Government had no power but what
was given it, and dangerous because an enumeration
which is not complete, is not safe”.

Now, a “declaration” or enumeration of reserved
rights, could not be said to be unnecessary, unless
there was an enumeration of delegated rights;
saying, then, that such declaration or enumeration
of reserved rights was unnecessary, Mr. Madison
said that there was an enumeration, a counting out,
one by one, of the delegated powers.

So, such enumeration or “declaration” of reserved
rights, would only be ““dangerous,” because an
enumeration of reserved rights would give ground
to the implication that all rights not enumerated,
were delegated, and a complete enumeration of
reserved rights, is a difficult thing to accomplish;
whereas, if the delegated powers are the ones that
are enumerated, as is the case with the Constitution,
as it stands, the implication will be that all powers
not enumerated are reserved. Mr. Madison said to
the Convention, in effect, adopt the Constitution as
it stands-you give away no power that you do not
enumerate.

Gov. Randolph’s testimony is most explicit and

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detailed on this point. He says, “Permit me to return
to that clause which is called by gentlemen the
sweeping clause. I observed, yesterday, that I
conceived the construction which had been put on
this clause by the advocates of the Constitution, was
too NARROW, and that the construction put upon it
by the other party, was extravagant. The former
contend that it gives no supplementary power, but
only enables them to make Laws to execute the
delegated powers; or in other words, that it only
involves the powers incidental to those expressly
delegated. By incidental powers , (the italics are
his,) they mean those which are necessary for the
principal thing”. This is Gov. Randolph’s testimony
as to what the advocates of the Constitution told the
Convention it meant. He, himself, was hardly to be
called an advocate of it. He spoke against it and
voted against it in the Federal Convention, of which
he was a member. Still, he went for ratifying it in
this, the Virginia Convention. He, therefore, is as
good a witness as could be, with reference to what th
e friends of the Constitution represented to be its
meaning, when trying to get it ratified.

*25 He then says, “Let me say that, in my opinion,
the adversaries of the Constitution wander, equally,
from the true meaning. The gentleman supposes that
complete and unlimited Legislation is vested in the
Congress of the United States. This supposition is
founded on false reasoning. There is not a word said
in the State Government, of the powers given to it,
because they are general: but in the general
Constitution the powers are enumerated. Is it not,
then, fairly deducible, that it has no power but what
is expressly given it? for if its powers were to be
general , an enumeration would be needless.

“But the insertion of the negative restrictions , (that
is, on Congress,) has given cause of triumph, it
seems, to gentlemen. They suppose that it
demonstrates that Congress are to have powers by
implication. I will meet them on that ground. I
persuade myself that every exception here
mentioned, is an ex ception, not from general
powers, but from the particular powers therein
vested”.

He then goes through with every restriction on
Congress, and shows that it is an exception out of

some expressly delegated power, and out of no
implied power. Here is a specimen of his style of
doing this: “To what power in the General
Government is the exception made, respecting the
importation of negroes? Not from a general power,
but from a particular power, expressly enumerated.
This is an exception from the power given them, of
regulating commerce”. He asks, “Where is the
power to which the prohibition of suspending the
habeas corpus is an exception? I contend, that by
virtue of the power given to Congress, to regulate
Courts, they would suspend the writ of habeas
corpus. This is, therefore, an exception to that power
”. (3 Ell. Deb. 463, 4.)

Thus, he labors through these restrictions on
Congress, to the end, insisting that even from them,
it was not to be inferred that Congress was to have
any implied power, or any power, except
enumerated powers.

So George Nicholas, “But it is objected to for want
of a bill of rights. It is a principle universally
agreed upon , that all powers not given, are retained”
. That he means all not expressly given, we shall
see. “In England, in all disputes between the King
and people, recurrence is had to the enumerated
rights of the people to determine. Are the rights in
dispute reserved? Are they included in Magna
Charta , Bill of Rights, &c.? If not, they are,
generally speaking, within the King's prerogative. In
disputes between Congress and the people, the
reverse of the proposition holds. Is the right
enumerated? If not, Congress cannot meddle with it

“Which is the most safe? the people of America
know what they have relinquished for certain
purposes. They also know that they retain
everything else, and have a right to resume what
they have given up, if it be perverted from its
intended object”. (Ibid, 246.)

*26 But even these great names, speaking for the
friends of the Constitution, were not enough to
satisfy the Convention on this point of implied
power. John Marshall, subsequently to become
Chief Justice of the U. S. had to take the stand and
bear witness, too, on the point. He spoke on the

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particular question, of the power of Congress over
the Militia. He said, “Could any man say that this
power was not retained by the States, as they had
not given it away? For, says he, does not a power
remain until it is given away”?

“For Continental purposes, Congress may call forth
the militia; as to suppress insurrections and repel
invasions. But the power given to the States by the
people, is not taken away, for the Constitution does
not say so. In the Confederation, Congress had this
power, but the State Legislatures had it also. The
power of Legislating, given them in the Ten Miles
Square, is exclusive. ALL the restraints intended to
be laid on the State Governments, (besides where an
exclusive power is expressly given to Congress,) are
contained in the 10th Section of the 1st Article. This
power, (the Militia Power,) is not included in that
section”. (3 Ell Deb. 419.)

Now, here, Judge Marshall goes this far, at least:
that there is nothing in the Constitution from which
you can imply any restriction upon the States. The
restrictions upon the States are all expressed. We
shall see, that when he asks the question, “Does not
a power remain until it is given away”? he means to
say, until it is expressly “given away”.

For, afterwards, in speaking on the Judicial powers
delegated by the Constitution, he says: “Has the
Government of the U. States power to make Laws
on every subject? Does he understand it so? Can
they make Laws concerning the mode of
transferring property, or contracts, or claims,
between citizens of the same State? Can they go
beyond the delegated powers? If they were to make
a Law not warranted by any of the powers
enumerated , it would be considered, by the Judges,
as an infringement of the Constitution which they
are to guard. They would not consider such a Law
as coming under their jurisdiction; they would
declare it void”. (Ibid, 553.)

John Marshall then told the Convention of Virginia,
to induce it to accept the Constitution, that the
Constitution meant only this: to give from the States
to the General Government, such powers as it “
enumerates”- as it counts out to that Government-no
more.

Under such assurances, from such quarters, the
Convention ratified the Constitution, but they did it
in such a way as to show that they understood the
Constitution to give the General Government no
other powers than such as were expressed in it.

*27 The Convention said, “We, the delegates, &c.
do declare and make known, that the powers
granted under the Constitution, being derived from
the people of the United States, be resumed by them
whensoever the same shall be perverted to their
injury or oppression, and that every power not
granted, thereby remains with them and at their
will. That, therefore, no right, of any denomination,
can be cancelled, abridged, restrained or modified,
by the Congress; by the Senate or House of
Representatives, acting in any capacity; by the
President; or any department, or officer of the
United States, except in those INSTANCES in
which power is given, by the Constitution, for those
purposes, &c. With these impressions, &c. we do
assent to and ratify the Constitution”.

Now, the word “instances” means here, specified
cases-enumerated cases. This is too plain to admit
of a doubt. The Convention so understood it.
Madison certainly did. (Id. 620.)

But the Convention did not stop here. They, at the
same time, proposed certain amendments to the
Constitution, to put this matter beyond doubt.
Among the amendments was one to the effect that
each State retains every power which is not
delegated. Another, “That those clauses which
declare that Congress shall not exercise certain
powers, be not interpreted, in any manner
whatsoever, to extend the powers of Congress; but
that this may be construed either as making
exceptions to the specified powers, where this shall
be the case or otherwise, as inserted merely for
greater caution”.

And the Convention enjoined it upon “Their
Representatives in Congress, to exert all their
influence and use all reasonable and legal methods,
to obtain a ratification of the amendments”.

Virginia, therefore, when she agreed to the
Constitution, understood it in the sense in which it

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was understood by the other States, viz: as an
instrument delegating no powers but those
expressed in it, and as one to be construed strictly.

Let us pass to Georgia. We have no evidence of the
doings of the Convention of this State, which
ratified the Constitution, except, simply, the
ratification itself. But we have numerous Acts and
Declarations of the State, some of them almost
contemporaneous with the ratification, which tell
the mind of Georgia, on the subject, more
emphatically, if possible, than the mind of any of
the other States is told, by the records of their
Conventions. These, I shall call to my aid.

The first Act of Georgia, to which I shall refer, will
be her denial of jurisdiction to the Supreme Court
of the United States, in a case which was brought
against her in that Court. It was the case of
Chisholm, Ex'r, against Georgia.

“This action was instituted in August Term, 1792.
On the 11th of July, 1792, the Marshall, for the
District of Georgia, made the following return:
Executed as within commanded; that is to say,
served a copy thereof, on His Excellency, Edward
Telfair, Esq. Governor of the State of Georgia, and
one other copy on Thomas P. Carnes, Esq. the
Attorney General of said State. ROBERT
FORSYTH, Marshall”.

*28 Georgia did not appear in the case. The
plaintiff then moved, that unless the State, after
reasonable notice of that motion, should cause an
appearance to be entered for her, or shew cause to
the contrary, judgment should be entered against
her, and a Writ of Enquiry of Damages be awarded.

Ingersoll and Dallas presented a written
remonstrance and protestation, on behalf of the
State, against the exercise of jurisdiction in the
cause; but in consequence of positive instructions,
they declined taking any part in arguing the
question. (2 Dali 419.)

It was argued by the Counsel for the plaintiff. The
Judges were not unanimous in opinion. The
majority, consisting of Jay, C. J., Wilson, Blair and
Cushing , Justices, held that the Court had

jurisdiction. Justice Iredell , in a very able opinion,
dissented and held that a State could not be sued.

The ground upon which the majority put their
decision was, the words of the Constitution-“The
Judicial power of the United States shall extend to
controversies between a State, and citizens of
another State”. The Chief Justice says, “It is
contended that this ought to reach none of those
controversies, excepting those in which a State may
be plaintiff ’. But in answer to that he maintains,
first, that the words are to be construed liberally , as
they are remedial Then he says, “If we attend to the
words , we find them to be express, positive, free
from ambiguity, and without room for such implied
expressions” (exceptions.) {Ibid, 476.)

So the Court “ Ordered , that unless the said State
shall either in due form appear, or shew cause to the
contrary, in this Court, by the first day of next
Term, judgment, by default, shall be entered against
the said State”. The reporter adds, in a note, that “In
February Term, 1794, judgment was rendered for
the plaintiff, and a Writ of Enquiry awarded. The
writ, however, was not sued out and executed; so
that this cause, and all of the other suits against
States, were swept, at once, from the records of the
Court, by the amendment of the Federal
Constitution. {Ibid, 480.)

Georgia treated the Court with contempt, in respect
to this case. Her position was, that the Court had no
jurisdiction of her as a party. Georgia maintained
that the words “The Judicial power of the United
States, shall extend to controversies between a State
and citizens of another State,” were not to be
construed to extend to controversies in which a
State might be defendant; but only to those in which
a State might be plaintiff-why? obviously because
1. It is not expressly said in those words, that the
power shall extend to controversies in which a State
may be defendant, and in the opinion of Georgia, no
department of the General Government had any
power but such as was expressly given it in the
Constitution. 2. Because, even if it is, in these
words, expressly said that the power shall extend to
controversies, in which a State may be defendant,
yet these words admit of another and a narrower
meaning, namely, one which restricts the power to

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controversies in which a State may be the plaintiff.
And they ought to be held to have that meaning, as
in the opinion of Georgia even express grants of
power in the Constitution, ought to be construed
with the utmost strictness.

*29 Georgia, then, in this case, which happened in
1792, three or four years only after the adoption of
the Constitution, held that no power was given by
the Constitution, but what was expressly given; and
that what was expressly given, was to be construed
strictly. It is true, this position of her’s was taken in
reference only to a single power-a Judicial power.
But the reasons of the position are general. To be
applicable to the particular power in the case, they
have to be large enough to be equally applicable to
all of the other powers delegated in the Constitution.

Now, in this position, Georgia triumphed. First. The
judgment against her fell dead. The plaintiff in the
case, himself, did not so much as have his Writ of “
Enquiry’ executed. He obtained the judgment, by
default, in 1794. Nothing more was done in the case
until 1798-after the amendment of the Constitution
had been made, when this and other similar cases
were “swept from the records.”

Secondly. This amendment, itself, vindicated the
truth of her position. The language of it is peculiar. “
The Judicial power of the United States, shall not be
construed to extend to any suit in Law or Equity,
commenced or prosecuted against one of the United
States, by citizens of another State, or by citizens or
subjects of any foreign State.” It is an amendment
not to alter the Constitution, but to keep it
unaltered. It is a rebuke to the Supreme Court, for
daring to change the Constitution, under pretence of
construing it-for daring to hold that the Constitution
was not to be strictly construed, even in the case of
the remedial powers which it delegates, and the
Judicial powers.

Now this amendment speaks the sense of two-thirds
of both branches of Congress, and the sense of the
whole people of every State that was in the Union,
at the time when it was made, as to the proper
construction of the entire Constitution. For if a strict
construction is the rule as to a Judicial power,
which is in its nature remedial, much more is it the

rule in reference to every other power. It is true that
the language of the amendment is not general, but is
confined to suits against a State. And for this, there
was a good reason. The mischief was no broader.
The Supreme Court had made no other false
construction than the one as to the power of suing a
State.- After the rebuke of that, was it to be
presumed that it would ever offend again in a case
of construction?

The next act to which I shall refer is the denial, by
Georgia, of jurisdiction to the Supreme Court in the
cases of Worcester and Butler vs. Georgia , to be
found reported in 6 Peters 515. The question in
those cases was, whether an appeal lay from the
Superior Courts of Georgia to the Supreme Court of
the U. S.; whether, in other words, the 25th section
of “The Act to establish the Judicial Courts of the
United States,” passed in 1789, which gives to the
Supreme Court of the United States the power of
revising and reversing judgments and decrees of
State Courts is Constitutional?

*30 In these cases, Worcester and Butler were
indicted, convicted and put in the peniteniary, for
violating the Laws of Georgia, which forbade white
persons to reside within the Cherokee Nation of
Indians without permission from the Governor, and
without having taken an oath to support and defend
the Constitution and Laws of Georgia, and uprightly
demean themselves as citizens thereof. The case
occurred in the Superior Court of Gwinnett County.
A writ of error was issued from the Supreme Court
of the U. S. on the application of the defendants, to
the Judges of the Superior Court, for the county of
Gwinnett. The Clerk of that Court returned a
transcript of the cases to the Supreme Court of the
U. S. But the Judge of the Court had nothing to do
with this act of the Clerk. He did not recognize the
right of the Supreme Court to issue the writ.

The Supreme Court of the U.S., by Marshall C.J.,
said that it was “too clear for controversy, that the
Act of Congress, by which this Court is constituted,
has given it the power, and of course imposed on it
the duty, of exercising jurisdiction in this case.”

Accordingly, that Court took jurisdiction and “
adjudged that the judgment rendered in the premises

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by the said Superior Court of Georgia,” whereby the
said Samuel A. Worcester is sentenced to hard labor
in the penitentiary of Georgia, ought to be reversed
and annulled, “and further” adjudged that said
judgment “be and hereby is reversed and annulled” “
and that a special mandate do go from this Court to
the said Superior Court, to carry this judgment into
execution.” The judgment was the same in the
Butler case.

Now what did Georgia do on receipt of this special
mandate? Through every department of her
Government she treated the mandate, and the writ
of error with contempt the most profound. She did
not even protest against jurisdiction as she had done
in the case of Chisholm’s Ex’r. But she kept
Worcester and Butler in the peniteniary, and she
executed in the Creek Nation the Laws, for
violating which, they had been put in the
penitentiary.

And what inference is to be drawn from this course
on her part?

In the opinion of the Supreme Court, the cases were
too clearly within the 25th section of the Act of
1789 to admit of a doubt as to the jurisdiction of the
Court. Yet Georgia said the Court had no
jurisdiction. If, then, the cases were within the Act,
the only question is, did Congress have power,
under the Constitution, to pass the Act? Georgia, by
holding that the Court had no jurisdiction, held that
Congress had no such power. Now to hold this,
what is the rule of construction which she must have
considered applicable to the Constitution? The strict
rule-the rule which allows the delegation of no
power by implication-the rule which restricts words
to the narrowest meaning in the cases of expressly
delegated powers.

*31 The Constitution says that “The Judicial power
shall extend to all cases in Law and Equity arising
under this Constitution, the Laws of the United
States, and treaties made, and which shall be made,
in pursuance thereof,” &c. It enumerates other
cases. It says, “In all the other cases before
mentioned (those affecting ambassadors being the
excepted ones) the Supreme Court shall have
appellate jurisdiction”.

Now it is not mentioned what Courts, whether State
or Lederal, this appellate jurisdiction is to apply to.
It is not expressly said that it is to apply to State
Courts. Therefore, says Georgia, it does not apply
to State Courts, and therefore the Act of 1789, as
far as it attempts to extend this jurisdiction to State
Courts, is unconstitutional and void.

It was not only in this case that Georgia occupied
this position-she did it in two other cases, and those
cases of life and death-the case of Tassels and that
of Graves. One of these happened before these
cases of Worcester and Butler, namely, in 1830, the
other afterwards in 1834. The Supreme Court had
issued writs of error in each of these cases on the
application of the defendants to the State of
Georgia. But as the cases are not reported, it is to be
presumed that these writs never got back to the
Supreme Court; or, that if they ever did, it was too
late. It is certain that Georgia hung the applicants
for the writ.

In the Tassels case, the Legislature passed these,
among other resolutions.

Resolved , That the State of Georgia will never so
far compromit her sovereignty, as an independent
State, as to become a party to the case sought to be
made before the Supreme Court of the United
States, by the writ in question.

“ Resolved , That His Excellency, the Governor, be
and he and every other officer of this State, is
hereby requested and enjoined to disregard any and
every mandate and process that has been, or shall be
served on him or them, purporting to proceed from
the Chief Justice, or any associate Justice, or the
Supreme Court of the United States, for the purpose
of arresting the execution of any of the criminal
Laws of this State.”

The resolutions were signed by Asbury Hull, as
Speaker, and by Thomas Stocks, as President, and
by George R. Gilmer, as Governor. ( Pamph . Acts of
1830,283.)

Similar resolutions were passed as to the case of
Graves by the Legislature of 1834. These were
signed by Thomas Glascock, Speaker; Jacob Wood,

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President; and Wilson Lumpkin, Governor. (Acts oj
1834,338,9.)

The signers of the first of these two sets of
resolutions, belonged to one of the political parties
into which the people of Georgia were divided; of
the last to the other of those parties. The two sets of
resolutions, therefore, are good evidence of what
was the unanimous voice of the whole people of the
State on the subject.

*32 Georgia, then, also meant the Constitution to be
strictly construed, when she agreed to it; and meant
it to convey no powers but those expressly
mentioned in it.

Of the old thirteen States, which made the
Constitution, I have now gone through with all
except three, Maryland, Delaware and New Jersey.
I have no evidence of the action or sentiments of
these States, in the adoption of the Constitution. But
it is to be presumed that they had the same view of
it which the other ten had; and if they did not, it can
make no difference to the argument; for without the
help of six, at least, of those ten, these three could
not have made the Constitution-even as between
themselves. It had to be ratified by at least nine
States, before it could become operative.

And what is the result? Does not the evidence
conclusively establish the three first of the four
propositions, and go far to establish the fourth? I
think so.

I am aware that a different doctrine has been laid
down by some text writers on the Constitution, and
by the Supreme Court of the U. S. I shall briefly
notice the doctrine they lay down.

Story, in his Commentaries on the Constitution, 1
vol. sec. 433, says, “In the interpretation of the
Constitution, there is no solid objection to implied
powers ”. Kent and Serjeant belong to the same
school.

And the Supreme Court of the United States, in
McCulloch vs. State of Maryland , through Ch. J.
Marshall , say, “Among the enumerated powers, we
do not find that of establishing a bank or creating a

corporation. But there is no phrase in the instrument
which, like the articles of confederation, excludes
incidental and implied powers, and which requires
that everything granted shall be expressly and
minutely described. Even the tenth amendment,
which was framed for the purpose of quieting the
excessive jealousies which had been excited, omit
the word ‘expressly’, (which was contained in the
articles of confederation) and declares only, that the
powers not delegated to the U. S., nor prohibited by
it to the States are reserved to the States
respectively, or to the people.”

It is true, the word ‘expressly’ is left out of the
clause in the amendment to the Constitution. But it
is to be remembered, as we have seen, that the
makers of the Constitution- the State Conventions
-in the making of it-before any amendment to it
existed-understood it to convey no powers but
expressed powers; and that they were led so to
understand it, by the representations of the friends
of it -this very man, Chief Justice Marshall, among
them , and that they agreed to the Constitution in this
sense, and this sense only. It is of no consequence
therefore, what this amendment contains or omits in
this respect.

I must, however, again quote what Judge Marshall
said in the Virginia Convention, when his object
was to make the Constitution palatable, and to have
it accepted. He said, “Has the Government of the U.
S. power to make laws on every subject? Does he
understand it so”? “Can they go beyond the
delegated powers? If they were to make a law not
warranted by any of the powers enumerated, it
would be considered by the Judges as an
infringement on the Constitution , which they are to
guard. They would not consider such a law as
coming under their jurisdiction. They would declare
it void”. Here is Marshall against Marshall-which is
to be taken? The first: otherwise, the Constitution
becomes a stupendous fraud on the States.

*33 But the history of that amendment deserves
some notice.- The friends of the Constitution, after
they had procured its adoption, were not so anxious
to have it amended as they had been to have it
adopted. Nearly every State wanted amendments;
and all that wanted them, wanted them on this very

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point, as to delegated and reserved powers. And the
Conventions of Massachusetts, New Hampshire and
Virginia instructed their members in Congress to do
their best to get an amendment, putting this point
beyond question.

Congress was the body that had power to propose
amendments. Let us see what it did on the subject of
this particular one.

The 9th proposition in the words following, was
considered by House of R: “The powers not
delegated by the Constitution, nor prohibited by it
to the States, are reserved to the States respectively”
. Mr. Tucker moved to insert the word “expressly’
before the word delegated. “Mr. Madison objected
to this amendment, because it was impossible to
confine a Government to the exercise of express
powers-there must necessarily be admitted powers
by implication, unless the Constitution descended to
count every minutia. He remembered the word
expressly had been moved in the Convention of
Virginia, by the opponents to the ratification; and
after full and fair discussion, was given up by them,
and the system allowed to retain its present form”.
This, and some remarks of Sherman, to the effect
that corporate bodies had “All powers incident to a
corporate capacity”, did the business for ‘expressly’

Mr. Carroll proposed to add, “or to the people”. (
Annals of Cong. 1 Vol. 790.) It was done.

Now, as to this statement of Mr. Madison, it is to be
observed that the report of the debates, &c., of the
Virginia Convention do not confirm it; but in the
strongest negative manner affirm what is
substantially the contrary of it. They show that the
Convention was told by the friends of the
Constitution, Madison himself, Nicholas, Randolph,
Marshall, that the Constitution would confer on the
General Government only express, ‘enumerated’
powers.

The ratification of Virginia shows the Convention
to have had the “impression” that “every power not
granted” by the Constitution, “remains” with the
people: ““““““that therefore no right”, &c., “can be
cancelled”, &c., “by the Congress”, &c., “Except in

those instances in which power is given by the
Constitution, for those purposes.”

Now that “ those instances ” mean those
specifications , those enumerated cases ““““““in
which power is given”, is too clear to admit of a
doubt. It is equally clear, that they were understood
in this sense, by the friends of the Constitution; and
that they were actually expounded in this sense, by
those friends, in order to induce the Convention to
choose the form of ratification which contained
them, in preference to a form proposed by Patrick
Henry. And that of those friends so expounding
them, was Mr. Madison himself. Here is the proof.

*34 Two modes of ratification were proposed to the
Convention, one by Wythe and one by Henry.
Wythe’s contained a preamble to the words of
ratification, in which was the declaration, that “The
powers granted under the proposed Constitution,
are the gift of the people; and every power not
granted thereby, remains with them and at their will;
no right, therefore, of any denomination can be
cancelled, &c., by the Congress, &c., except in
those instances in which power is given by the
Constitution for those purposes”, &c.

Wythe’s mode was adopted; and it was then “
Ordered that a committee be appointed to prepare
and report a form of ratification pursuant to that
mode.”

This was done, and the committee reported a form
of ratification, which contained the very words
aforesaid, contained in Wythe’s preamble. (3 Ell.
Deb. 587, 593, 653, 654-5-6.)

Now, in the debate on the two proposed modes,
Gov. Randolph said, “What is the paper which he
(Henry) offers in the form of a bill of rights? Will
that better secure our rights than a declaration like
this? (viz, of Wythe’s.) All rights are therein
declared to be completely vested in the people,
unless expressly given away. Can there be a more
pointed or positive reservation”? So Randolph says
the meaning of this declaration is, that all rights are
vested in the people, unless expressly given away. (
Id. 598.)

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After Gov. Randolph, on the same side, in reply to
one or two intervening speakers on the other side,
came Mr. Madison. He said “With respect to the
proposition of the honorable gentleman to my left,
(Mr. Wythe) gentlemen apprehend that by
enumerating three rights, it implied there were no
more.- The observations made by a gentleman lately
up, (manifestly Governor Randolph) correspond
precisely with my opinion .” So Mr. Madison
endorses Gov. Randolph as to the meaning of those
words. And he adds, “Can the General Government
exercise any power not delegated? If an
enumeration be made of our rights, (viz: our
reserved rights) will it not be implied that every
thing omitted is given to the General Government”?
And, to carry out the idea, whereas, if we do not
make an enumeration of our reserved rights, but do
make one of the delegated rights, it will be implied
that every right ‘omitted’ from the enumeration of
delegated rights: that is, that every right not
enumerated-not expressed , is not delegated. (3 Ell.
Deb. 620.) Of all certain things, none can be more
certain than this: that the friends of the Constitution
in the Virginia Convention were most anxious to
repel the idea that the Constitution would confer
powers by implication. And power could be
conferred on it in but two ways, by implication or
by expression.

It is to be hoped, therefore, that Mr. Madison is
misreported in the Congressional Annals.

*35 It is to be remembered, too, that at this time
Mr. Madison was not the man that he became
afterwards. He was the man that a year or two
before, in the Convention for drafting the
Constitution, used this language: “The States at
present are only great corporations, having the
power of making by-laws, and these are effectual
only, if they are not contradictory to the General
Confederation. The States OUGHT to be placed
under the control of the General Government-at
least as much as they formerly were, under the King
and British Parliament ’. And it must be admitted
that after the adoption of the Constitution, no better
ways remained to give the General Government this
control, than to make a new instrument of the
Constitution, by construction. ( Yate’s Min. 1 Ell.
Deb. 461.)

But there is a word more to be said on this point.

The Convention of Massachusetts accompanied
their ratification with the expression of an opinion,
that certain amendments would remove fears and
guard against an undue administration of the
Federal Government; and they, therefore,
recommended the adoption of the following
amendment, among others:

“1. That it be explicitly , (not left implicitly, as it is
now,) declared that all powers, not expressly
delegated, are reserved to the several States, (not ““
or to the people”,) to be by them exercised”.

And the Convention enjoined it “upon their
Representatives in Congress, at all times, until the
alterations and provisions aforesaid have been
considered, to exert all their influence, and use all
reasonable and legal methods , to obtain a
ratification of the said alterations and provisions”.
(1 Ell. Deb. 321, 322, 326.)

It will be remembered, too, that this proposed
amendment, number one, was stated to the
Massachusetts Convention, by John Adams, to be,
in itself, equal to a Bill of Rights, and that Fisher
Ames and Theodore Sedgewick, were two of the
leading friends of the Constitution in that
Convention, and who favored its ratification in that
form.

Now, these two gentlemen were also members, of
the Congress which proposed the amendment under
consideration. Did they not “exert all their
influence, and use all reasonable and legal methods”
, to obtain a ratification of the Massachusetts
amendment, as they were enjoined by the
Massachusetts Convention to do, and as they had
personally promised to do, by going for the
ratification, in the form in which it stood? Did they
not insist upon having the word “expressly” in?
They did not open their mouths on the subject. They
did not so much as tell the House what was the wish
Massachusetts. They did not ask for the yeas and
nays.

But things had changed; the Constitution had
become a thing established; before, when the

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promise was made, it was a thing to be established;
and to establish it was seen to be a work of no small
difficulty. Help was needed then.

*36 This Congress went further. It added, at the end
of the clause, the words, “or to the people”, “
reserved to the States or to the people”. This
addition was called for by no word or deed, of any
of the State Conventions. It was put in evidently for
future use-to help out a theory of the Constitution-
that which assumes for its first principle that the
Constitution of the United States was made, not by
the peoples of the States, as separate peoples, but by
the people of all the States, acting as one people and
being one people. That theory, before this little sly
addition to the Constitution was made, had no place
inside the Constitution for its feet to stand on. It had
to wait outside, in the preamble.

Instead, then, of proposing amendments of
restriction, which the makers of the Constitution
wanted, this Congress proposed amendments of
enlargement, which those makers did not want. And
here, perhaps, we see where entered the first pick in
the process of “sapping and mining” the
Constitution-a process in which, according to Mr.
Jefferson, another department of the Government
was to become proficient.

Now, it is true that the omission of the one word,
and the addition of the four, are really small
matters. They do not change the sense. That, as we
have seen, was as full without as with any such
amendments, and was so understood to be by the
makers of the Constitution, at the time they made it.
But then, as to the motives which actuate men, a
small thing may tell, as much as a great one.
Treachery, infinite, may be exhibited by a mere kiss.

I shall have occasion, again, to advert to the
doctrine of the Supreme Court, on the rule of
construction of the Constitution. I shall then
consider the question, of what authority, over this
Court, is a decision of the Supreme Court of the
United States. For the present, I shall claim that my
first, second and third propositions are established
by the evidence. The fourth proposition, viz: “That
the words used, if susceptible of more meanings
than one, were used in the meaning which was least

favorable to the delegation of power, and most
favorable to its retention”, will receive some further
support. This proposition, more especially, involves
the rule which is commonly called the rule of strict
construction. That rule, however, is also involved in
the other three propositions.

Did, then, the makers of the Constitution intend that
the expressed powers should be construed strictly?
That they did, is manifest from a variety of things
additional to what have been already brought
forward.

1. The people of the States loved their State
Governments, and distrusted any Central or General
Government. This is a fact as well authenticated as
any in history. See Madison, (3 Ell. Deb. 258.)
They would, therefore, take as little power as
possible from these Governments, to give to a
Central one. And to diminish the gift as much as
possible, it has to be construed strictly.

*37 2. The people of the States who made the
Constitution, considered themselves as the
sovereign, and the Government as the subject. They
were the principal- it the agent. That this is also
true, none will dispute.

Now, in a question between principal and agent, the
instrument of agency is, as a matter of course, to be
construed strictly against the agent. Such
construction cannot hurt him. Any other might hurt
his principal. The Constitution is but this
instrument. Cannot the makers of this, as of all other
constitutions, revoke it, even without leave of the
agent?

Even the King’s grants are to be construed strictly in
favor of the King, and against the grantee, he being
considered in the systems of Laws which tolerate
Kings the Sovereign, and the people the subject.
Shall not, therefore, the grant of the people, the real
sovereign, to the magistrates, whom they appoint,
for their own, and not for those magistrate’s
purposes, be also construed strictly in their favor,
and against the magisistrates?

And if a deed is without consideration , it conveys
as little as construction can make it convey. There is

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no consideration moving from the Government to
the States, for the Constitution.

The people, then, who made the Constitution,
considering themselves and the Government they
made, to occupy this relation towards each other,
are to be presumed to have intended the usual
incidents of such a relation. And a strict
construction of the instrument of agency, is one of
those incidents.

3. Strict construction of expressed powers results
from the fact that no powers but expressed powers
are given. Why were no powers but expressed
powers given-because the people did not want to
part with power without knowing it- without seeing
it with their eyes. Will you, then, in construing their
words, make them say they mean to give more than
the least their words require to be given. It is to be
presumed they did not see the larger meaning of
which their words are susceptible, otherwise they
would have used different words.

The makers of the Constitution enumerated all the
powers they gave, even to the power to carry
powers into effect.- They did not intend that there
should be any opening for implied powers. They did
not leave open the door for the ordinary implication
that when the end is given expressly, the means are
given impliedly. They made a list of powers and
said to the Government, you may have these. They
then said here is another power which you shall
have, viz: a power to pass any law which may be
necessary and proper , to carry into effect any of the
first named powers. Now, as to the latter power-the
power over means, it is expressly to be taken
strictly-it is to be confined to what is necessary and
proper. Is it to be supposed that the men who
intended such a construction as to means-the less
power should have a different sort of one for
ends-the greater power.

4. Why did they make provision for amending the
Constitution? Mainly to furnish an easy way to give
the Government more power if experience should
prove it to need more. It is easy to give power-hard
to get it back-knowing this, is it not to be supposed
that the makers of the Constitution intended their
grants of power to be taken strictly?

*38 5. But if any thing could prove that the rule of
strict construction was the rule intended by the
makers of the Constitution, it would be the
amendment of the Constitution as to construction.
That amendment is, that “The Judicial power shall
not be construed to extend to any suit, as against
one of the United States, by citizens of another
State, or by citizens or subjects of any foreign State”
?

Now here is a construction which the makers of the
instrument themselves put upon their own work in
respect to one most important power. The words to
be construed were these: “The Judicial power shall
extend” “to controversies” ““““““between a State
and citizens of another State” “and between a State
or the citizens thereof, and foreign States, citizens
or subjects”. The Supreme Court of the United
States, in the case of Chisholm, Executor vs.
Georgia, had held that the former of these grants
authorized a State to be sued as defendant. That
Court maintained that the words themselves plainly
said that the State might be sued-as plainly as they
said “a citizen” might be. But two-thirds of both
branches of Congress, and the entire people of all
the States said no. They said that even such words
should not be so construed. They said that the
words were susceptible of a narrower meaning, one
in favor of the States -a meaning which would let
States sue, but not be sued; and that, therefore, the
words should be construed to have that meaning.
This was all said and done soon after the making of
the Constitution-from 1793 to 1798- when the
whole idea of the Constitution was fresh in the
minds of them -its makers. This was a remedial
power too. Yet as against the States even, it must
give up its prerogative, and be construed strictly.

Now if in such a case the makers of the
Constitution, trampling the Supreme Court under
their feet in favor of the States, say the strict rule
shall prevail, in what possible case could they say it
should not prevail? Was it to be presumed that after
such a rebuke from the makers of the Constitution,
the Supreme Court or any branch of the
Government would ever give occasion for another,
by committing a similar offence against
construction. Certainly not. Hence the amendment
is not made larger than the mischief. But it shows,

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unmistakably, the idea of the makers of the
Constitution, as to the rule of its construction. It
shows they intended it to be construed with the
utmost strictness possible, in favor of the States.

6. But the makers of the Constitution were
deceived. Congress and the Supreme Court,
notwithstanding this rebuke, went on in their old
course of construction. They found a warrant in the
Constitution for Jay’s treaty; for the alien act; for the
sedition act. So the makers of the Constitution
thought they would try another remedy than
amendment of that instrument. They concluded to
smite the construers. This they did. Wherever they
could reach an offender, they hurled him against the
ground, and put their foot on him, and kept him
there till he died or repented. The Supreme Court
offenders were beyond their reach. They had in
their offices a tenure for life; and as all the
offenders in this case were such as not to be
affected by any thing but punishment , those who
could not be punished contemned their courses. But
the other departments of the Government underwent
a change. They construed the Constitution
according to the Virginia and Kentucky Resolutions
of 1798 and 1799. These prescribed the strict rule.
This was the rule of Jefferson and the Republican
party. This was the rule that put down the Federal
party which had had possession of the Government
from its origin under the Constitution. The offence
of that party was that, in the opinion of the makers
of the Constitution, the people of the States had put
a false construction on that instrument. Hence it was
hurled from power-from respectability. Its name
became a word of reproach. This great revolution in
government was made for the sake of a rule of
construing the Constitution-this same strict rule.
And from the year 1800, 1801, when the revolution
took place, no party has professed any other rule,
although it must be admitted that the practice of
parties has not, in this respect, always corresponded
with their professions. The voice of the makers of
the Constitution then -the people of the States-by
this amendment of the Constitution, and by this
condemnation of the early administrators of it,
proclaims the strict rule.

*39 7. And the practice of all of the States, from the
date of the Constitution, ' til this day, proves the

States to believe that rule to be the true one. All
have passed Laws upon the idea that they retained
all powers which a strict construction of the
Constitution would not give to the General
Government. The Passenger Laws of New York and
Massachusetts illustrate this. These two great States
thought their respective laws on this subject to be
warranted by the Constitution. This was the opinion
of every branch of the Governments of each of
those States. This was the opinion of four Judges of
the Supreme Court of the United States. And
doubtless this was the opinion of the Congress and
the President of the United States: for neither of
those departments made any complaint of those
Laws; and they were Laws which infringed the
rights of those departments, if they infringed any
rights, for they touched commerce, if they touched
any thing committed to any department; and that is
committed to Congress. And is it not certain that
this was the opinion of all the other States and State
Governments? But against all this weight of opinion
in favor of the constitutionality of these laws, we
had Mr. Justice McLean, Mr. Justice Wayne, Mr.
Justice Catron, Mr. Justice Grier, and Mr. Justice
McKinley.

But the question for the present is, not what the
Supreme Court consider the rule of construction to
be, or whether what they consider it to be is to be
conclusive upon the rest of the world, but it is, what
was the sense in which the makers of the
Constitution understood it, at the time when they
made it. And I now insist that I have established all
of my four propositions on that subject, viz:

[6.] 1. The makers of the Constitution understood
that it delegated to the General Government, or any
department thereof, no power by implication , but
only delegated such powers as it expressly
enumerated.

2. That it delegated no exclusive power, unless the
delegation was said to be exclusive.

3. That it laid no prohibition upon the States, except
such as it specified.

4. That the words used in it, if susceptible of more
meanings than one, were used in the meaning which

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was least favorable to the delegation of power, and
most favorable to its retention.

I have assumed that the Constitution is to be
construed in the sense in which its makers
understood it when they made it. Who will dispute
this?

In what sense did those makers understand it? I
have endeavored to show. Have I succeeded? What
is there against my conclusions? Nothing, except
some decisions of the Supreme Court of the United
States. Are not these decisions, per se , evidence of
what was the sense which the makers of the
Constitution had, of the meaning of that instrument?
I say by no means. What that sense was, is a
question of fact , which has to be solved by going
into the domain of facts-the domain in which I have
been laboring so long. It is a question which
evidence , not ipse dixit , must determine.

*40 And I say, further, that the rule of construction
of the Supreme Court, as it is to be deduced from
the decisions of that Court, is one which needs only
to be read in its consequences, to satisfy everybody
that it could not have been the rule of the makers of
the instrument. Is this so? Let us take one of its
most celebrated decisions-the decision in
McCulloch vs. Maryland , and see. (4 Wheat.)

Maryland made a Law, imposing a tax on “All
banks or branches thereof, in the State of Maryland,
not chartered by the Legislature”. The branch of the
United States Bank, at Baltimore, refused to pay
this tax-the Cashier of it was sued for the tax by the
State, and the suit was finally carried up to the
Supreme Court of the United States.

That Court decided, first, that Congress had power
to make a bank. Secondly, that the States had not
power to tax the branches of such a bank,
established within their territory. In order to arrive
at these conclusions, the Court had to have very
large premises. Accordingly, to support the first
conclusion, it pronounced the rule of construing the
clause of the Constitution which gives Congress
power to pass all Laws which may be necessary and
proper, for carrying into execution the enumerated
powers, to be this: “The result of the most careful

and attentive consideration bestowed upon this
clause is, that if it does not enlarge, it cannot be
construed to restrain, the powers of Congress, or to
impair the right of the Legislature to exercise its
best judgment in the selection of measures to carry
into execution the Constitutional powers of the
Government”.

This means that among measures for executing, “the
Constitutional powers of Government”, Congress
may, at discretion, choose one as well as another.
And this is giving Congress power to make a
dictator.

The appointment of a dictator would be a measure
by which all the powers of the Government could be
executed most promptly and most efficiently. It is
by far the simplest of all modes.

The argument will stand thus: Congress has power
to select any measure for executing the
Constitutional powers of the Government.

The appointment of a dictator would be a prompt,
efficient and simple measure to execute any of its
powers.

Therefore, Congress has power to appoint a dictator.

The premises are amply large enough to hold this
conclusion.

To support the second conclusion, the Court lays
down this proposition: “We find, then, on just
theory, a total failure of this original right to tax the
means employed by the Government of the Union,
for the execution of its powers”. And this-“That the
power to tax involves the power to destroy”. And
these-“If we apply the principle for which the State
of Maryland contends, to the Constitution,
generally, we shall find it capable of changing,
totally, the character of that instrument. We shall
find it capable of arresting all the measures of the
Government, and of prostrating it at the foot of the
States. If the States may tax one instrument
employed by the Government, in the execution of
its powers, they may tax any and every other. They
may tax the mail; they may tax the mint; they may
tax all the means employed by the Government, to

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an excess which would defeat all the ends of
Government-this was not intended by the American
people”.

*41 Now the principle at the bottom of all these
propositions is this: The States have no power, by
the exercise of which, they can defeat all the ends of
Government-the General Government, or any of
those ends.

But the States, by the exercise of the taxing power,
can take from their inhabitants every cent the
inhabitants can spare, and live.

According to the principle of this decision,
therefore, the States have no power to lay any tax
on their inhabitants; and if they have no power to
tax, it follows that they have no power to enable
them to keep up their State Governments; and
without State Governments, they have no power to
keep themselves alive, as States.

The principle comes to this: that the States, in
making the Constitution, intended to give up the
power of self-preservation.

On the one hand, then, Congress may convert the
General Government into a dictator; on the other,
the States have not retained the power of
self-preservation. This is McCulloch vs. Maryland.
It is to this that the Supreme Court rule leads. Did
the makers of the Constitution intend any such rule
as this?

But this case is evidence in another point of view. It
shows that the Supreme Court of the United States,
in construing the Constitution, not only do not seek
for the meaning of the makers of it, but that when
they have that meaning, unmistakably, without
seeking for it, they disregard it. They decide, here,
that Congress may charter a corporation. Now the
power “To grant charters of incorporation, where
the interest of the United States might require, and
the Legislative provisions of the several States may
be incompetent”, was asked to be given to
Congress, in the Convention which framed the
Constitution. There being much objection to the
breadth of this power, as asked for, and some
indications of favor to a power, merely to

incorporate canals, the motion was so modified as
to admit a distinct question, specifying and limited
to the case of canals. It was rejected by eight States
to three; and “The other part”, says Mr. Madison, “
fell, of course, as including the power rejected ”.
The Convention, then, refused the power to
incorporate so much as a canal; and, in the face of
this refusal, the Supreme Court of the United States
say, they gave power to incorporate a bank, with a
capital of $35,000,000, and authority to establish
branches in every State. What matters it to such a
Court, what was the wish of the makers of the
Constitution? (5 Ell. Deb. 543, 4.)

The disregard of this Court to the known will of the
makers of the Constitution, as to the rule of
construction, is equally exhibited in a number of
other cases; especially in the cases of Cohen vs.
Virginia and Worcester & Butler vs. Georgia , in
which it held that a State might be sued,
notwithstanding the clear manifestation of the will
of the makers of the Constitution, in the amendment
of it, to which I have heretofore referred, that the
Constitution was not to be so construed as to make
a State sueable.

*42 But are not the decisions of the Supreme Court
of the United States to govern this Court, as to the
rule of construing the Constitution? They are not,
any more than the decisions of that Court are to be
governed by the decisions of this.

The Supreme Court of the United States has no
jurisdiction over this Court, or over any department
of the Government of Georgia. This Court is not a
United States Court; and therefore, neither the
Government of the United States, nor any
department of it, can give this Court an order. It
follows, if this be true, that decisions of that Court,
are not precedents for this Court.

Is this true? Let us see. And first, let us try the
questions by the principles of the party of liberal
construction, as promulged by their most
distinguished leaders.

That party held, at the time the Constitution was in
the process of adoption, as well as afterwards, that
the State Governments were “supreme” and ““

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sovereign,” as to some things, and that the General
Government was “supreme” and “sovereign”, as to
some. Alexander Hamilton, as we have seen, when
insisting on the adoption of the Constitution in the
New York Convention, said, “That two supremes
cannot act together, is false. They are inconsistent,
only when they are aimed at each other, or at one
indivisible object. The Laws of the United States
are supreme, as to all their proper Constitutional
objects; the Laws of the States are supreme in the
same way. The meaning of the maxim-there cannot
be two supremes, is simply this: two powers cannot
be supreme over each other”. (2 Ell Deb. 356.)
Again, a day or two after, he said, “I maintain that
the word supreme , imports no more than this: that
the Constitution and Laws made in pursuance
thereof, cannot be controlled or defeated by any
other Law. The Acts of the United States, therefore,
will be absolutely obligatory, as to all the proper
objects and powers of the General Government; but
the Laws of Congress are restricted to a certain
sphere; and when they depart from this sphere, they
are no longer supreme or binding. In the same
manner, the States have certain independent powers,
in which their Laws are supreme. For example, in
making and executing Laws concerning the
punishment of certain crimes, such as murder, theft,
&c. the States cannot be controlled. With respect to
certain other objects, the powers of the two
Governments are CONCURRENT, and yet
supreme. I instanced, yesterday, a tax on a specific
article. Both might lay the tax-both might collect it,
without clashing or interference. If the individual
should be unable to pay both, the first Seizure
would hold the property. Here, the Laws are not in
the way of each other-they are independent and
supreme ”.

The idea meant to be conveyed here is clearly this:
that the General Government has a sphere in which
it is supreme, and the State Governments a sphere in
which they are supreme; that these spheres intersect
each other, and that the space included between the
arcs of intersection, is common to both-is a space in
which both are equally supreme , and in which there
is no rule but on e-Qui prior est in tempore potior
est in jure.

*43 The same principles have been expressed by

Marshall , Chief Justice, since the adoption of the
Constitution. In McCulloch vs. Maryland , he says, “
In America, the powers of sovereignty are divided
between the Government of the Union, and those of
the States. They are each sovereign , with respect to
the objects committed to it, and neither sovereign,
with respect to the objects committed to the other”.
(4 Wheat. 410.)

Now, if the General Government, by its Judiciary,
can come out of its sphere, into the sphere of a State
Government, and ravish a case thence out of the
hands of the State Judiciary, the two Governments
are not equally supreme within their respective
spheres. But they are, by admission of Hamilton and
Marshall, equally supreme in their respective
spheres; therefore, the former Government cannot
do this, with respect to the latter. As well might it
be said that England could order a case out of
France, from a French into an English Court; or that
a State Court could order a case out of the Supreme
Court of the United States into it. None but a
superior can give an order; none but an inferior is
bound to obey one.

The question, when tried by the rule of strict
construction, does not admit of a doubt. That rule
is, that the General Government has no powers,
except such as have been expressly delegated to it;
and that the delegations of express power are to be
strictly construed.

Now, jurisdiction over State Courts is not expressly
given to the General Government, or any
department of it.

Therefore, according to this rule, such jurisdiction
is not given at all.

Not only is this sort of jurisdiction not expressly
given; but there is another sort expressly given,
which necessarily excludes the idea that this was
intended to be given. That is done in the third
article for organizing the judiciary. This will appear
by simply inserting in that article the words which
are necessarily implied. Let us do this. The section
will then read as follows, the supplied words being
in brackets:

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The (whole) judicial power (except as herein

excepted) of the United States, shall be vested in
one Supreme Court, and in such Inferior Courts as
the Congress may, from time to time, ordain and
establish. The Judges, both of the Supreme and
Inferior Courts, (who are to exercise this whole
judicial power, except as herein excepted) shall
hold their offices during good behavior; and shall,
at stated times, receive for their services a
compensation which shall not be diminished during
their continuance in office.

The (whole) judicial power (except as before

excepted) (thus vested in one Supreme Court and in
such Inferior Courts as the Congress may, from time
to time establish, to be exercised by Judges who are
to hold their offices during good behavior) shall
extend to all cases in Law and Equity, arising under
this Constitution, the Laws of the United States, and
treaties made, or which shall be made under their
authority, to all cases affecting Ambassadors, other
public Ministers and Consuls; to all cases of
admiralty and maritime jurisdiction; to
controversies to which the United States shall be a
party; to controversies between two or more States;
between a State and citizens of another State;
between citizens of different States; between
citizens of the same State, claiming lands under
grants of different States; and between a State or the
citizens thereof, and foreign States, citizens or
subjects.

*44 In all (those) cases affecting ambassadors, other
public ministers and consuls, and those in which a
State shall be a party, (in respect to which the whole
judicial power of the U. S. is thus vested in one
Supreme Court, and in such Inferior Courts as the
Congress may, from time to time ordain and
establish with Judges for life,) the Supreme Court
shall have original jurisdiction. In all the other cases
before mentioned, (in respect to which the whole
judicial power of the U. S. is thus vested in one
Supreme Court, and in such Inferior Courts as the
Congress may, from time to time ordain and
establish, with Judges for life,) the Supreme Court
shall have appellate jurisdiction, (as to such Inferior
Courts ) both as to Law and fact, with such
exceptions, and under such regulations, as the
Congress shall make, (and such Inferior Courts

shall, as to these other cases, have original
jurisdiction as to such Supreme Court.)

The mere supply of these necessarily understood
words, makes it as clear as day, that the appellate
jurisdiction delegated to the Supreme Court, applies
only to the Inferior Courts of the United States ,
ordained and established by Congress, with Judges
for life , and not to State Courts, which are not
United States Courts, which are not ordained and
established by Congress, and which are presided
over by Judges who do not hold their offices for life.

Now in this part of the article is contained the whole
judicial power delegated to the General
Government, except as to impeachments; and as to
the powers of the two houses to judge of the
elections, &c., of their members.

What, then, is thus expressly laid down in the
Constitution, necessarily excludes the idea that the
General Government, or any department of it, was
to have jurisdiction over the Courts of a State.

But again: if this sort of appellate jurisdiction
exists, then it exists equally with respect to a State
Court of one grade, as to a State Court of another. It
exists as to all Courts ‘inferior’ to the Supreme
Court; and if the highest State Courts are inferior to
that Court, still more so are the less high. If this sort
of jurisdiction exists, then there may, as far as this
State is concerned, be an appeal to the Supreme
Court of the U. S., from the Supreme Court of the
State, from the Inferior Courts, from the Ordinary,
from the Justice’s Courts, from Corporation Courts,
and perhaps from Court’s Martial. This appellate
jurisdiction, then, if it exists, extends to every State
Court alike.

And the same sort of construction which makes it to
exist at all, as to any State Court , will much more
easily make it extend to every case that can arise in
any such Court. The cases to which it is to extend,
as mentioned by the Constitution, are “All cases in
Law and Equity, arising under this Constitution, the
Laws of the United States, and treaties made, or
which shall be made under their authority” and
others. But these are enough. What are cases “
arising under the Constitution”? Under the liberal

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rule of construction, it is easy to say that the
Constitution is an instrument which gives one part
of the powers of Government to the General
Government; and gives the other part to the
States-that all power is given by the Constitution.
Now if that be said, no case of any kind can arise in
a State which will not draw in question some power
of the State, or some power of the General
Government; but if a case draws in question a
power of either, it is a case arising under the
Constitution; because, on on this theory, the powers
of both are derived from the Constitution.

*45 This appellate jurisdiction, if it exists then,
extends to all State Courts of all grades, and to all
cases in those Courts.- The effect of such extension,
would be to make the States exist, at the mercy of
the General Government. If they laid a tax, the
taxed person might refuse to pay it; and if sued for
it, appeal to the Supreme Court. That Court could
pronounce the tax law unconstitutional; as flowing
from a power which, if it existed in the States, might
enable the States to destroy the General
Government, by taking to themselves all that could
be paid for taxes, and leaving nothing for the
General Government to take. The Court would so
pronounce, if it should follow the principle on
which McCulloch vs. Maryland stands. This is but
an instance out of a thousand.

Now the power to annul State Laws was not given
to the General Government. The Federal
Convention refused repeatedly to give this power to
any department of the General Government.

In Mr. Randolph's propositions, which were the
basis of the Constitution, the effort to give this
power first appears. His 6th resolution had these
words, “““Resolved, that each branch (of the
Legislature) ought to possess the right to negative
all laws passed by the several States, contravening,
in the opinion of the National Legislature, the
articles of union; or any treaty subsisting under the
authority of the United States”.

His 8 th, these: “That the Executive, and a
convenient number of the National Judiciary, ought
to compose a council of revision, with authority to
examine every act of the National Legislature,

before it shall operate; and every act of a particular
Legislature, before a negative thereon shall be final;
and that the dissent of the said council shall amount
to a rejection, unless the Act of the National
Legislature be again passed, or that of a particular
Legislature be again negatived by - of the members
of each branch”. (5 Ell Deb. 127-8.)

Here the Judiciary was to take part in the veto of
State Laws. It might, with the President, affirm a
veto applied by either branch of Congress to a State
Law. But even this limited right was not allowed to
the Judiciary. It was struck from the resolution, and
at once. ( lb. 166.) And although asked for

repeatedly afterwards, by the enemies of the States,
in the Convention, it was pertinaciously refused.
The Judiciary was refused the power to participate
in any revision or negative of any Laws, whether
State or Federal. (See lb. 344, 428.)

So the power proposed to be given to the Federal
Legislature, “To negative all laws passed by the
several States, contravening in the opinion of the
National Legislature, the articles of Union”, &c.,
was refused by the vote of seven States to three. ( lb.
321, 322.) Even Gouverneur Morris “opposed this
power as likely to be terrible to the States, and not
necessary, if sufficient power should be given to the
General Government”. ( lb .)

*46 Indeed, members of the Convention, Mercer,
and Dickinson, and Sherman, expressed decided
opinions against the propriety of the doctrine, that “
The Judges, as expositors of the Con stitution,
should have authority to declare a Law void”; and
these opinions were feebly combatted. ( lb. 429.)

It appears, then, that the Convention which drafted
the Constitution, although repeatedly requested to
give the veto of State Laws to the General
Government, steadily refused it -refused to give a
mere modicum of it to the Judiciary.- And if it
refused to give the power directly, it is not to be
presumed that it gave it indirectly, by a forced
implication in the said third article-gave it, indeed,
without knowing what it was doing.

Now it must be manifest to any one, on a little
reflection, that if the United States' Courts have

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power over the State Courts , they have power over
the State Laws- power over the operation of those
Laws, within the territory of the States- power to
nullify every Act of the States. Was this the
intention of the makers of the Constitution-these
very States?

[7.] The conclusion is, that the Supreme Court of
Georgia is co-equal and co-ordinate with the
Supreme Court of the United States, and not inferior
and subordinate to that Court. That as to the
reserved powers, the State Court is supreme; that as
to the delegated powers, the U. S. Court is supreme;
that as to powers, both delegated and reserved-
concurrent powers-botb Courts, in the language of
Hamilton, are “equally supreme”; and that as a
consequence, the Supreme Court of the United
States has no jurisdiction over the Supreme Court of
Georgia; and cannot, therefore, give it an order, or
make for it a precedent.

This conclusion is in accordance with the uniform
action of the Government of Georgia, in all of its
departments. In the cases of the missionaries,
Worcester and Butler; of Tassells, and of Graves,
her Courts treated, with contempt, the claim of
jurisdiction over them, by the Supreme Court of the
United States. The missionaries served their times
out in the penitentiary, notwithstanding the mandate
of the Supreme Court of the United States, that they
should be set at liberty. In this course, on the part of
the Judiciary, the Legislature and the Executive
concurred-indeed, co-operated. And the people
approved the conduct of the whole.

Now it is true, these were criminal cases; but that
can make no difference. If the United States’ Court
has no jurisdiction over the State Court, with
respect to a criminal case, involving Statutes of the
United States, and treaties with the Indians, as these
cases did, it can have none over the State Court,
with respect to a civil case. A civil case can do no
more towards giving jurisdiction than involve some
Statute, or treaty, or the Constitution.

I am aware that Congress have passed two Acts
contravening this view. The Act of 1789, to
establish the Judicial Courts of the United States,
and the Act of 1833, further to provide for the

collection of duties on imports”. (Story's Laws , 1
vol. 53, 4 do. 2340.)

*47 The first, in its 25th section, declares, among
other things, “That a final judgment or decree, in
any suit in the highest Court of Law or Equity, of a
State, in which a decision in the suit could be had,
where is drawn in question the validity of a treaty or
Statute of, or an authority exercised under the
United States, and the decision is against their
validity”, &c. enumerating other cases, “may be
re-examined and reversed or affirmed in the
Supreme Court of the United States, upon a Writ of
Error”, &c.

The Act of 1833 declares that in any case, where
suit or prosecution shall be commenced in a Court
of any State, against any officer of the United States
or other person, for or on account of any Act done
under the Revenue Laws of the United States, &c. “
it shall be lawful for the defendant, at any time
before trial”, upon petition, to transfer his case into
the Circuit Court of the United States; “And it shall
be the duty of the Clerk of the Circuit Court, to
issue a Writ of Certiorari to the State Court,
requiring said State Court to send to said Circuit,
the record and proceedings in the cause”.

The men that made this Act, did not have the
effrontery to make it to last longer than the “end of
the next Session of Congress”.

This Act makes the Circuit Courts-the inferior
Courts of the United States, superior to the highest
State Courts. And, in truth, there is as much warrant
in the Constitution, for making these inferior Courts
so, as for making the Supreme Court so.

If the Constitution does not give the General
Government, or any department of it, jurisdiction
over the Judiciary of the States, it does not give
Congress the power to pass such Laws as these; and
these Laws are therefore void.

My opinion is, that the Constitution does not, and I
have given my reasons for the opinion.

But say that I am wrong in this opinion; still, I deny
that the decisions of the Supreme Court referred to,

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are precedents to govern this Court.

Those decisions were mere partisan decisions-to be
overruled in the Court which made them, as soon as
a majority of the members of the Court should be of
different politics from the politics of the members
who made the decisions. The doctrine that a
decision of the Supreme Court of the United States
is to dictate a man’s politics to him, is a doctrine
avowed by few in this country. Such a doctrine
would be an easy means of perpetuating a dynasty
of principles, however false or wicked. All that
would have to be done, would be to start with men
of those principles. Their decisions would do the
rest. Whatever they said the Constitution meant, the
people would have to vote it to mean. Parties, on
Constitutional questions, could not arise.

But are these mere political decisions, and made by
partisan Judges?

*48 There are now, and have been before now, in
these United States, but two parties, with a deeply
marked line of separation between them. The party
which stands on the side of the delegated powers,
and that which stands on the side of the reserved
powers-the National party and the State's Rights
party.

Now, the effect of the decisions of the Supreme
Court, to which I have referred, is to put up the
National party and to put down the State's Rights
party. The decisions are, therefore, political.
Indeed, they discuss the same topics and come to
the same results, in all respects, as do the speakers
in Congress, the stump orators out of Congress, and
the newspaper writers in and out of it-of the same
politics as the majority of the Court making the
decisions.

Are the Judges partisans? What are their
antecedents? The leading Judges on the bench of
the Supreme Court, before the era of Judge
Marshall, were Jay, Wilson and Ellsworth? Each of
these had been an active and an ardent politician
before he went upon the bench. He had acquired his
bend in politics. On the bench, he only uttered the
same Constitutional doctrines which he had uttered
off.

In the era of Judge Marshall, which lasted through
thirty-four years, he was the Chief of the Court, and
Justice Story was a good second. Was Judge
Marshall a politician? Let this summary of his life,
taken from his biography, in the National Portrait
Gallery , answer:

Bom in 1755, he was a Lieutenant in 1775; a first
Lieutenant in 1776; a Captain in 1777, 1779 and
1780. He read Law in 1780. After Cornwallis's
surrender, the Courts being again opened, he
commenced practice. In 1782, he was elected to the
Legislature of Virginia; in the same year, was made
a member of the Executive Council. In 1784, he
resigned his seat in the Council. Immediately
afterwards, he was again elected to the Legislature.
In 1787, he was elected from Henrico. In 1788, he
was a member of the Virginia Convention for
ratifying the Constitution. In the same year, he was
elected to the Legislature. “With considerable
reluctance, he yielded to the public wishes, being
principally influenced, in his acceptance of the
station, by the increasing hostility manifested in the
State, against the National Government, and his
own anxious desire to give the latter his decided and
public support”. He continued a member for
Richmond during 1789, 1790 and 1791. Then he
retired from politics. He was again drawn forth by
the French question. Here, “the decided taken by
Mr. Marshall, could not long remain unnoticed. He
was attacked with great asperity, in the newspapers
and pamphlets of the day, and designated, by way of
significant reproach, as the co-adjutor and friend of
Alexander Hamilton”. In 1795, he was elected to
the Legislature, in which body he signalized himself
by the defence of Jay's treaty, the great political
question of the day. In consequence, he was offered,
by the President, the place of Attorney General;
solicited to go Minister to France, but declined both
offers. Within a year, he was offered this place of
Minister, by the next President, Adams. This time
he accepted, went abroad and returned in 1798. The
next year, after an “ardent contest”, he was elected
to Congress. He took his seat in December, 1799;
distinguished himself in the “ever memorable”
Congress of 1799, 1800, and in May, 1800, was
made Secretary of War, and soon afterwards,
Secretary of State. In 1799, while a candidate for
Congress, he was offered a place on the bench of

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the Supreme Court of the United States; but this he
then refused, preferring, no doubt, the more
dazzling honors of the mere politician. A year
afterwards, he thought better of the Judgship. It was
offered him again, and on the 31st of January, 1801,
he took it-became Chief Justice. By this time, it was
seen that his party was struck with death, and that,
therefore, further political offices were hopeless.
Whilst upon the bench, he lost no occasion to
inculcate his politics. Hence, the number of his
elaborate obiter dicta discourses. As in Marbury vs.
Madison , where, although admitting his Court had
no jurisdiction in the case, he argued at length, to
show what was the Law of it, and what the Court
would do, if it had jurisdiction, namely: issue a
mandamus to a co-ordinate department of the
Government, the Secretary of State, requiring that
department to commission to office certain of his
party friends, who had been appointed to office at
midnight of the night when the appointing power
itself, John Adams, went out of office. As in Cohens
against The State of Virginia , a case in which his
Court decides that it has no jurisdiction upon the
merits; and yet, in a motion, not on the merits, he
lays down the doctrine that a State may be sued, and
sued by one of its own citizens, in the Supreme
Court of the United States, notwithstanding he,
himself, had told the Convention of that very
Virginia, when persuading it to adopt the
Constitution, that a State could not be sued, and was
not intended to be sued, by virtue of the Judiciary
article of the Constitution.

*49 His language to the Convention is most
unequivocal. He said, “I hope that no gentlemen
will think that a State will be called at the bar of the
Federal Court. It is not rational to suppose that the
Sovereign power should be dragged before a Court.
The intent is, to enable States to recover claims oj
individuals residing in other States. I contend this
construction is warranted by the words. But, say
they, there will be partiality in it, if a State cannot
be defendant; if an individual cannot proceed to
obtain judgment against a State, though he may be
sued by a State. It is necessary to be so, and cannot
be avoided”. It is charity to set down these opposite
representations of the meaning of the Constitution,
to the inconsistencies of the mere politician.

It was not only on the bench that he taught politics.
He entered the fields of history and biography for
the same purpose. For what is his Life of
Washington and History of the Colonies, but a
labored defence of his party, and an effort to raise
its desperate fortunes, by forcing the name of
Washington on the list of its patrons. No; it was not
the death of Washington, but the death of the
Federal Party, that set that work on foot. This is but
thinly disguised, in the preface of the work. He
says, “Deep impressions were then made, respecting
the subjects themselves, and the persons by whom
the various important propositions, then discussed,
were supported or opposed, which are not yet
entirely effaced. Justice to the patriot statesmen,
who then devoted their time and talent to the public
service, requires that the reasons on which they
acted should be known”. Marshall, then, was a
partisan, if there was ever one. Whilst thus a
partisan, holding all the opinions of his party, he is,
by a party-President, in the last hour of the party,
when its death-warrant has already been signed, to
save him from the general doom, and as the only
reward left for party services, Presidencies being
out of the question, offered a Judgship. This time he
accepts it, although he had refused it a year before,
when it had not become apparent that the last hour
of the party was at hand, and when, therefore,
higher offices might not be looked for, from it, than
that of Judge. What was the course for any partisan
to pursue, under such circumstances? That which he
pursued. He took sanctuary, for life, in the Supreme
Court. But there he was the same man that he had
been before he got there. The only effect was, to
make him more bold in the avowal of his old
principles. He no longer had to answer for them at
the ballot-box. He and his Court, with respect to the
Constitution, took one road-the other departments
of the Government, and the vast majority of the
American people, took another. There they have
been respectively travelling, the greater part of the
time since. The opinions of neither have had the
least influence upon the action of the other. As to
Judge Story, he is understood to have distinguished
himself, somewhat, as a Republican partisan, before
the war of 1812, in Massachusetts, where
Republicans were then rather scarce. Being a young
lawyer of some promise, and about the only lawyer
of that party, there, of much note, he was selected,

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by Mr. Madison, for the bench of the Supreme
Court of the United States. But once on the bench,
he forsook his party and became the humble
interpreter of Marshall-the Dumont to Bentham. He
made it his business to illustrate and to embody the
political doctrines of his chief. And this he did, in
what he styles his “Commentaries on the
Constitution”. This is a work of as rank partisan
character, on one side, as the Virginia and Kentucky
Resolutions, and Mr. Madison's Report of 1798 and
1799, are on the other. Indeed, these Commentaries,
and most, if not all of Marshall's Constitutional
decisions, are only so much talk at those resolutions
and that report, although the resolutions and report
are seldom mentioned.

*50 Now, partisan decisions may do to bind the
political party, which the makers of them happen to
belong to. They certainly bind no other party. And
this has been the uniform opinion and practice of all
parties in this country. The Supreme Court said a
bank is Constitutional; yet, bank charters have been
vetoed by three several Presidents:
Madison-Jackson-Tyler.

So, when a person has been put on the bench of the
Supreme Court, who has different politics from
those which justified any particular decision, he
goes according to his own politics, and not
according to the decision. He dissents, if need be, as
was done in the Passenger Cases. He decides
Constitutional questions as he understands them.

And partisan decisions-and all decisions on
Constitutional questions, must be more or less
partisan-owg/^ not to bind as precedents, because
they are not made by the tribunal which, in the last
resort, is supreme. This tribunal is the people of the
States-the authors of the Constitution.

[8.] The general conclusion is, that what was before
laid down as to the sense in which the makers of the
Constitution understood the Constitution, when they
made it, is true, any thing in any decision of the
Supreme Court of the United States to the contrary,
notwithstanding. It remains only, therefore, to make
an application of what was thus laid down to the
matters in hand, viz: to the case of Brown vs.
Maryland , to see whether it overrules that case, and

to the case of Padelford Fay & Co. before this
Court, to see how it requires that case to be decided.

But what was laid down? Let us repeat it.

The makers of the Constitution, at the time when
they made it, understood it in this sense:

1. That it delegated to the General Government, or
any department thereof, no power by implication ,
but only delegated such powers as it expressly
enumerated.

2. That it delegated no exclusive power, unless the
delegation was said to be exclusive.

3. That it laid no prohibition on the States, except
such as it specified.

4. That the words used in it, if susceptible of more
meanings than one, were used in the meaning which
was least favorable to the delegation of power and
most favorable to its retention.

These propositions convey the sense in which the
makers of the Constitution understood it, at the time
when they made it. The sense of the makers is to
govern. These propositions then become the rules of
construing the Constitution.

[9.] Tried by these rules, the decision in Brown vs.
Maryland will be easily found to be
unconstitutional. But the length to which this
opinion has already been drawn out, forbids me to
make the application of the rules to that case. It is
sufficient that I confine myself to the application of
them to the case for the decision of this Court. That
I shall now endeavor to do.

*51 [10.] According to these rules, therefore, does
the Ordinance of Savannah interfere with the clause
of the Constitution, which says that Congress shall
have “power to regulate commerce with foreign
nations and among the several States”? The answer
is that it does not.

1. The power to regulate commerce, given to
Congress, is not said to be exclusive. Therefore it is
not exclusive. The States and Congress have it

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concurrently.

2. So a tax on “sales” is not a tax on commerce- not
a regulation of commerce. Sales are not commerce.
Commerce is traffic-is an act- is the act of buying
and selling-and not the result of the act-not the thing
bought or the thing that stands in the place of the
thing sold-the price-the “sales”.

It is true, the liberal rule of construction makes
commerce mean “intercourse” and mean “navigation
’’-but the word has no such meaning by dictionaries;
by the Common Law; or by common usage. And if
this rule allows you to step beyond the meaning of
the word thus defined, to “intercourse” and to “
navigation” it may perhaps equally allow you to
step to “sales”. The strict rule, however, allows
nothing of the kind. It requires words susceptible of
more meanings than one, to be taken in that which
must favor the States.

3. Then these “sales” if commerce at all, are not
commerce “ with foreign nations ,” or “ among the
States ”. If commerce at all, they must be held under
the rules we are now applying, to be internal
commerce- the commerce that takes place entirely
inside of a State. They are the result of a whole
year's business within the limits of the State.

4. This ordinance is a tax Law-not a commercial
Law. If it interferes with any power of Congress, it
must, under these rules, be with the taxing power.
But the taxing power is not by these rules, or by any
decision, or opinion, exclusive.

[11.] Nor, according to these rules, does the
Ordinance conflict with the other clause of the
Constitution-“No State shall, without the consent of
the Congress, lay any imposts or duties upon
imports or exports, except what may be absolutely
necessary for executing its Inspection Laws, and the
net produce of all duties and imposts laid by any
State on imports or exports, shall be for the use of
the Treasury of the United States -and all such Laws
shall be under the control and supervision of the
Congress”.

1. The amount of sales is not “an import”-it is
money-probably in this case bank bills; and of

banks created by the State itself-a product of the
State-a product certainly subject to taxation, in the
hands in which it existed before it passed to these
plaintiffs; and if so, it passed to them, subject to all
of its incidents. This is equally true of coin. But that
it is not an import is enough.

*52 2. Nor is a tax upon the amount of sales of
imports the same, in effect , as a tax upon imports.
The former sort of tax affects only the people of the
State, which lays the tax; the latter affects them, and
it may also affect the people of all other States. A
tax upon imports tends to prevent imports from
passing through the State that lays the tax, into any
other; and to the extent of the tendency, other States
suffer. The States might, therefore, be very well
prohibited from taxing imports, without being
prohibited from taxing the sale of imports.

The evil which this prohibition was intended to
remedy, was this very evil of one State's taxing the
imports of another, as they passed through it, to
reach that other. The Atlantic States taxed all
imports. The consequence was, that the interior
States had to pay the tax upon all such articles of
import as they consumed. It was for the benefit of
these interior States, that this prohibition was put in
the Constitution. The reason of the prohibition,
then, does not extend to a tax upon the consumption
of imports consumed within the State itself, which
imposes the tax. (5 Ell. Deb. 112.)

But say that this tax on “sales” is the same thing as
a tax on imports, still, the tax ordinance is not void.

In the view of the Constitution, a State's purpose for
taxing imports or exports, may be that of executing
its Inspection Laws, or it may be some other.

If the purpose be to execute its Inspection Laws, the
State may tax imports without the consent of
Congress. And she may make the tax as high as she
pleases; but she can retain of the ‘produce’ of the
tax, only as much as is necessary to defray the
expenses of the execution of the Inspection Laws.
The residue she must pay to the United States. No
part of the Law, under which she imposes a tax for
this purpose , is void. It is only subject to reversion
and control by Congress.

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14 Ga. 438 Page 44

14 Ga. 438, 1854 WL 1492 (Ga.)

(Cite as: 14 Ga. 438)

But if the State's purpose be any other, she cannot
tax imports and exports without the consent of
Congress. It follows, as a matter of course, that with
the consent of Congress, she may tax them.

In the case, then, of this consent, the State Law,
laying the tax, is not void.

Nor in this case will the produce of the tax have
even to be paid to “the Treasury of the United States
for in this case there is no such thing as “net
produce”. These terms apply to the case of a tax for
executing Inspection Laws. It must cost something
to execute such Laws. That something is to be paid
out of the tax. The rest of the tax is “net produce.”
This is to be for the use of the Treasury of the U.S.
These words, therefore, having reference to the
expenses of executing Inspection laws, can have no
operation, if there is no Inspection Law. This view
is confirmed by the history of the clause. See 5 Ell.
Deb. 486, 540-7.

But even if Congress does not consent to such a
Law, the Law is not void. It is still a Law, but a Law
“subject to the revision and control of the Congress.
” It may be that Congress though, not consenting to
such a Law, would still be satisfied with some little
revision of it, so as to accommodate the Law to its
own policy-as by striking out of the Law an article
which it prefers to be on the “free list”; for
example, coffee. This change it could effect by a “
revision” or “control” of the Law. Shall the
Judiciary step in between the Congress and the State
and defeat the wishes of both? It is well known that
Congress has, itself, taxed imports for the protection
of domestic manufactures, as well as for revenue.
Now a tax on imports, by the States, would tend to
accomplish the former object, and therefore might
meet with the decided approval of Congress.

*53 Is it to be said that Congress cannot “revise” or
“control” such a Law? it is, if the doctrine be true,
that such a Law is void. What is void, is not
revisable-not controlable any more than what does
not exist is. It is an abuse of language to speak of
revising and controlling any void thing.

As, therefore, it is, “all such Laws ” that shall be
subject to the revision and control of the Congress, “

such Laws” must be Laws , and therefore they
cannot be void.

This seems to me to be the plain meaning of this
clause of the Constitution. It is, too, a meaning
entirely consistent with the most liberal rule of
construing the Constitution. It is the one
imperatively required by the strict rule. Taking,
then, this to be the meaning, viz:

1. That a State, without the consent of Congress,
may tax imports to execute her Inspection Laws.

2. That the “net produce” of such tax is to be for the
use of the Treasury of the United States.

3. That with the consent of Congress, she may tax
imports for any purpose.

4. That even without the consent of Congress, she
may tax imports for any purpose-subject only to a
power in Congress, to revise and control the tax.

5. That the part of the clause requiring the “net
produce,” &c. to be for the use of the United States,
applies only to taxes on imports, laid for executing
Inspection Laws. Let us apply it to the tax in
question, in this case, assuming the tax to be in fact,
a tax on imports.

[13.] 1. Is this a tax for executing the Inspection
Laws of the State? Quite a number of such Laws
exist, viz: Laws for the inspection of beef, pork,
pitch, tar, turpentine, fire-wood, tobacco, lumber
and flour. ( Pr. Dig. “ 4 Staples .’) It does not appear
from the facts of the case, what is the purpose of the
tax. It does not, therefore, appear that so much of
the tax as relates to imports, is not for the purpose
of executing the Inspection Laws of the State.
Admit that more may be said against the idea that
this was the purpose than can be said in favor of it.
That is not conclusive. The question is, has the
State broken the Constitution in authorizing this
tax? Now it is the duty of the Courts of the State to
make every presumption possible, against the idea
that the State has violated the Constitution. And it is
a possible thing for this ordinance to have been laid
for the purpose of executing the State's Inspection
Laws.

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14 Ga. 438 Page 45

14 Ga. 438, 1854 WL 1492 (Ga.)

(Cite as: 14 Ga. 438)

2. If this be such a tax, it does not appear whether
there is any net produce from it or not.

[14.] 3. Supposing this not to be a tax for inspection
purposes, has Congress consented to its being laid?
It is certain that Congress has not expressly
consented. But is express consent necessary? There
is nothing in the Constitution which says so. There
is nothing in the practice of men, or in the
Municipal Law of men, or in the practice of nations,
or the Law of nations that says so. Silence gives
consent, is the rule of business life. A tender of
bank bills is as good as one of coin, unless the bills
are objected to. To stand by, in silence, and see
another sell your property, binds you. These are
mere instances of the use of the maxim in the
Municipal Law. In the Law of Nations, it is equally
potent. Silent acquiescence in the breach of a treaty
binds a Nation. ( Vattel, ch. 16, sec. 199, book 1.
See book 2, sec. 142, et seq. as to usucaption and
prescription, and sec. 208 as to ratification.

*54 Express consent, then, not being necessary, is
there any thing from which consent may be
implied? There is-length of time. The Ordinance
was passed the 24th of January, 1842, and has been
in operation ever since. If Congress had been
opposed to the Ordinance, it had but to speak, to be
obeyed. It spoke not-it has never spoken: therefore,
it has not been opposed to the Ordinance, but has
been consenting to it.

[15.] 4. Say, however, that Congress has not
consented to the Ordinance, then the most that can
be maintained is, that the Ordinance stands subject
to “the revision and control of Congress.” It stands
a Law-a something susceptible of revision and
control-not a something unsusceptible of revision
and control as a void thing would be.

5. The question, as to ‘net produce’, cannot arise in
the case in which Congress consents, or that in
which she refuses to consent to the tax. There
cannot be such a thing as ‘net produce’ in either of
those cases; but only in the case of a tax for
inspection purposes.

[16.] But let it be granted that the ordinance is void,
does it follow that the decision of the Court below

ought to be reversed? By no means. If the Law is
void, and yet is enforced, who is injured by it? The
seller of the import? Not at all. He is paid the tax by
the purchaser from him before he pays it to the City.
The tax is ultimately paid by the consumer of the
article. The price or sale of which is taxed. The
merchant puts the amount of the tax, as he does
every other item of the cost of the goods, in the
price which he fixes upon them-and when he sells,
he gets from the purchaser that amount with the
rest. If the tax injures any private person at all,
therefore, that person is the consumer of the taxed
article, and not the seller of it. To apply this more
directly to the case. Padelford, Fay & Co. sold
imports, and got the money for them. These imports
had a tax on them. The amount of that entered into
the price at which they sold the imports. Therefore,
when they sold them at that price, they received the
amount of this tax. They have it in hand. The City
wants to get it out of their hands. They object, and
insist upon keeping it, saying the Law under which
it is claimed is void. Can this objection be allowed
to be in their mouth? The consumer is the injured
man; and he, by buying the taxed article and paying
the tax included in the price, waives his objection to
the tax. He is willing, for his money thus paid, to go
to the City. In fact, he pays it for the use of the City.
He might give it to the City, if he choose to do so;
and if he did and should deliver it to Padelford, Fay
& Co. to deliver to the City, would they be allowed
to retain it? Certainly not. Neither should they be
allowed to retain this tax, so paid them by the
consumer, for the use of the City. It is a universal
maxim, that Quilibet potest renunciare juri pro se
introducto. The consumer, therefore, can waive his
right to object to this ordinance, on the score of its
being void; and he does this when he pays the tax it
imposes on him. It is time enough to hold a Law,
made under the authority of the State, to be a
violation of the Constitution, when it is complained
of by somebody that it injures. It is too soon to do
this, when the complaint is made by one that it does
not injure, and one, who, if the complaint be
allowed, will be enabled to keep what, in justice and
equity, he has no right to.

*55 But, indeed, no private person has a right to
complain, by suit in Court , on the ground of a
breach of the Constitution. The Constitution, it is

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Page 47 of 51

14 Ga. 438

14 Ga. 438, 1854 WL 1492 (Ga.)

(Cite as: 14 Ga. 438)

true, is a compact, but he is not a party to it. The
States are the parties to it. And they may complain.
If they do, they are entitled to redress. Or they may
waive the right to complain. If they do, the right
stands waived. Could not the States, in their
sovereign capacities, or Congress (if it has the
power) as their agent, forgive such a breach of the
Constitution, on the part of a State, as that of
imposing a tax on imports, or accept reparation for
it? In case this were done, what would become of
the claims of private persons, for damages for such
breach? To let such claims be set up against the
forgiven party, would be to do away with the
forgiveness. No, if there existed such claimants,
they would have to appeal, each to his own
sovereign for redress. It was that sovereign’s
business to get enough from the offending
sovereign, to cover all private losses of his own
citizens-and if he did not get enough to do that,
those citizens must look to him, alone for indemnity.

And this brings to my general conclusion, which is,
that the judgment of the Court below, ought to be
affirmed.

Ga. 1854.

Padelford, Fay & Co. v. Mayor and Aldermen of

City of Savannah

14 Ga. 438, 1854 WL 1492 (Ga.)

END OF DOCUMENT

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Wfestlaw.

Date of Printing: AUG 10,2007

KEYCITE

pTadelford, Fay & Co. v. Mayor and Aldermen of City of Savannah, 14 Ga. 438, 1854 WL 1492 (Ga., Jan
Term 1854) (NO. 64)

History
Direct History

=> 1 Padelford, Fay & Co. v. Mayor and Aldermen of City of Savannah, 14 Ga. 438, 1854 WL 1492

(Ga. Jan Term 1854) (NO. 64)

Negative Citing References (U.S.A.)

Criticized in

[> 2 Ware v. State, 137 Ga.App. 673, 224 S.E.2d 873 (Ga.App. Feb 17, 1976) (NO. 51513)* *

Overruling Recognized by

[> 3 Raif v. State, 109 Ga.App. 354, 136 S.E.2d 169 (Ga.App. Feb 25, 1964) (NO. 40186, 40187)**

Citing References

Positive Cases (U.S.A.)

★★ Cited

4 Watkins v. State, 33 S.E.2d 325, 331+, 199 Ga. 81, 88+ (Ga. Feb 08, 1945) (NO. 15050)

5 Collins v. Mills, 30 S.E.2d 866, 869+, 198 Ga. 18, 22+ (Ga. Jul 10, 1944) (NO. 14885)

6 Wrought Iron Range Co. v. Johnson, 11 S.E. 233, 235, 84 Ga. 754, 754, 8 L.R.A. 273, 273 (Ga.
Apr 04, 1890)

7 T. Gould & Co. v. City of Atlanta, 55 Ga. 678, 685, 1876 WL 2908, *5 (Ga. Jan Term 1876)

8 City Council of Augusta v. Dunbar, 50 Ga. 387, 391, 1873 WL 2746, *5 (Ga. Jul Term 1873)

9 Webb v. Oliver, 211 S.E.2d 605, 609, 133 Ga.App. 555, 559 (Ga.App. Nov 21, 1974) (NO. 49727)

10 Mercantile Trust & Deposit Co. of Baltimore v. Collins Park & B.R. Co., 99 F. 812, 815
(C.C.N.D.Ga. Feb 07, 1900) (NO. 1090)

11 Piqua Bank v. Knoup, 1856 WL 59, *19, 6 Ohio St. 342, 377 (Ohio Dec Term 1856) (in dissent)

★ Mentioned

12 Dallinger v. Rapello, 14 F. 32, 36+ (C.C.D.Mass. Oct 18, 1882)

13 Edye v. Robertson, 18 F. 135, 143, 21 Blatchf. 460, 460 (C.C.E.D.N.Y. Sep 05, 1883)

14 In re Watson, 15 F. 511, 516 (D.Vt. Dec 01, 1882)

15 Walcott v. People, 17 Mich. 68, 87, 1868 WL 1720, *12 (Mich. May 13, 1868)

State Administrative Materials (U.S.A.)

16 1984 Ga. Op. Atty. Gen. 10, To: Commissioner (1984)**

Secondary Sources (U.S.A.)

17 State tax on or in respect of goods shipped in interstate commerce to consignee for sale on
consignor’s account without previous sale or order for purchase, 4 A.L.R.2d 244 (1949)

18 Treatise on Constitutional Law s 23.25, s 23.25. Interpretation at the Time of Adoption (2007)

19 Am. Jur. 2d Inspection Laws s 1, s 1. Generally; definition and nature (2007)

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Page 50 of 51

JAMES MADISON’S CELEBRATED REPORT OF 1800: THE TRANSFORMATION OF THE
TENTH AMENDMENT, 74 Geo. Wash. L. Rev. 165, 200 (2006)

’’THIS NEW AND BEAUTIFUL ORGANISM”: THE EVOLUTION OF AMERICAN
FEDERALISM IN THREE STATE SUPREME COURTS, 87 Marq. L. Rev. 253, 296+ (2003)
THE INTERSTATE COMPACT ON ADULT OFFENDER SUPERVISION: USING OLD
TOOLS TO SOLVE NEW PROBLEMS, 9 Roger Williams U. L. Rev. 71, 128 (2003)
PREEMPTIVE OPINIONS: THE SECRET HISTORY OF WORCESTER V. GEORGIA AND
DRED SCOTT, 63 U. Pitt. L. Rev. 487, 587+ (2002)

ON TARIFFS v. SUBSIDIES IN INTERSTATE TRADE: A LEGAL AND ECONOMIC
ANALYSIS, 74 Wash. U. L.Q. 1127, 1192 (1996)

LESSONS OF LUMPKIN: A REVIEW OF RECENT LITERATURE ON LAW, COMITY, AND
THE IMPENDING CRISIS, 23 Wm. & Mary L. Rev. 571, 624+ (1982)

Court Documents

Appellate Court Documents (U.S.A.)

Appellate Briefs

26 Redwine v. Georgia Railroad & Banking Co., 1952 WL 82910, *82910+ (Appellate Brief) (U.S.
Dec 27, 1952) Statement as to Jurisdiction (NO. 516)**

27 Hale v. Bimco Trading, Inc., 1938 WL 39188, *39188+ (Appellate Brief) (U.S. Oct Term 1938)

Brief on Behalf of Appellants (NO. 418)* *

28 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. Dino Alexis BELLAZERIUS and
Anthony Louis Billa, Appellant(s)-Defendant(s)., 2002 WL 32304492, *32304492+ (Appellate
Brief) (5th Cir. Oct 15, 2002) Original Brief on Behalf of Appellants (NO. 02-30815)* *

29 George E. ””sonny”” PERDUE, Iii, in his Official Capacity as Governor of State of Georgia,
Appellant/Movant, v. Albert C. PALMOUR, Carlton Vines, Eddie Hurley, and Samuel Finster,
Appellees/Respondents., 2004 WL 2362693, *2362693 (Appellate Brief) (Ga. Jul 06, 2004) Brief
of Appellee Albert C. Palmour (NO. S04A1700) ’ ”**

30 George E. ’’’’sonny”” PERDUE, III, in his Official Capacity as Governor of State of Georgia,
Appellant/Movant, v. Albert C. PALMOUR, Carlton Vines, Eddie Hurley, and Samuel Finster,
Appellees/Respondents., 2004 WL 2362695, *2362695 (Appellate Brief) (Ga. Jul 06, 2004) Brief
of Appellee Albert C. Palmour (NO. S04A1700) ” ”* *

31 Stewart MILLER and Denise F. Miller, Appellants, v. GEORGIA PORTS AUTHORITY,
Appellee., 1996 WL 33482027, *33482027 (Appellate Brief) (Ga. Feb 20, 1996) Supplemental
Brief of Appellee (NO. S95G1719) ’ ”* *

32 Emory C. PARRISH, et al., Appellants, v. THE EMPLOYEES RETIREMENT SYSTEM OF
GEORGIA, et al., Appellees. (Case No. S90A0575) The Georgia Association of Educators, Inc., et
al., Appellants, v. The Teachers Retirement System of Georgia, et al., Appellees. (Case No.
S90A0576), 1990 WL 10042301, *10042301 (Appellate Brief) (Ga. Feb 12, 1990) Brief of
Appellants (NO. S90A0575, S90A0576) ””**

Trial Court Documents (U.S.A.)

Trial Pleadings

33 We the People of the united States of America 1. Eddie L. ANDREWS, ex rel 2. Rodney Class, ex
rel 3. Charles D Spencer, Sui Juris, Relator, v. 4. William F. DOWNES, individuals/Official
Capacity 5. Terence Kern., individuals/Official Capacity 6. John R. Adams, individuals/Official
Capacity 7. Graham C. Mullen, individuals/Official Capacity 8. Linda K. Soper, individual/Official
Capacity 9. Deborah J. Groom, individual/Official Capacity 10. John L. Chastain,, 2006 WL
3878831, *3878831 (Trial Pleading) (D.D.C. Nov 07, 2006) Fraud Upon the Court for Due
Process Violations,... (NO. 106CV01900)* *

34 Rodney BRAXTON, Lien Claimant, v. Lawyer, Reita PENDRY; Lawyer, Michael Rankin; Lawyer,
Theadore B. Olson; Lawyer, Shellie F. Bowers; Lawyer, Stephen F. Eilperin; Lawyer, John
Ashcroft and John Does One Through Fifty, Lien Debtors., 2002 WL 32650145, *32650145 (Trial
Pleading) (S.D.Ga. Aug 15, 2002) Civil Action Tort Claim Against Lawyer’s Who Have ... (NO.

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CV202-143)**

35 William F KAETZ, Plaintiff, v. CHASE MANHATTAN BANK USA, N.A. 1201 N Market St # 8
Wilmington, De 19801 -1807, Defendants., 2005 WL 3141111, *3141111+ (Trial Pleading)
(M.D.Pa. Oct 18, 2005) Motion to Amend complaint pursuant to FRCP 15(a) (NO.
305-CV-1546)**

Trial Motions, Memoranda and Affidavits

36 William F KAETZ, v. William J. MCCARTHY, Jr., 2005 WL 3590189, *3590189 (Trial Motion,
Memorandum and Affidavit) (M.D.Pa. Nov 08, 2005) Motion to Vacate Order denying
Plaintiffs ... (NO. 303CV1544)**

37 William F KAETZ, v. MONROE COUNTY COURTHOUSE, et. al., 2005 WL 3590219,

*3590219 (Trial Motion, Memorandum and Affidavit) (M.D.Pa. Nov 08, 2005) Motion to Vacate
Order denying Plaintiffs ... (NO. 303CV1816)**

38 William F KAETZ, Plaintiff, v. CHASE MANHATTAN BANK USA, N.A. 1201 N Market St # 8
Wilmington, DE 19801-1807 Chase Home Finance LLC Executive Resolution Group, #17742 1500
West 3rd Street, Third Floor Cleveland OH 44113-1429, Defendants., 2005 WL 2916836,

*2916836 (Trial Motion, Memorandum and Affidavit) (M.D.Pa. Sep 26, 2005) Plaintiff wishes to
amend complaint and offer ... (NO. 305-CV-1546)* *

39 William F KAETZ, Plaintiff, v. CHASE MANHATTAN BANK USA, N.A. 1201 N Market St # 8
Wilmington, DE 19801 -1807 Chase Home Finance LLC Executive Resolution Group, #17742
1500 West 3rd Street, Third Floor Cleveland OH 44113-1429, Defendants., 2005 WL 2916838,
*2916838 (Trial Motion, Memorandum and Affidavit) (M.D.Pa. Sep 26, 2005) Plaintiff wishes to
amend complaint and offer ... (NO. 305-CV-1546) , fc'fr

40 William F KAETZ, Plaintiff, v. CHASE MANHATTAN BANK USA, N.A. 1201 N Market St # 8
Wilmington, DE 19801-1807 Chase Home Finance LLC Executive Resolution Group, #17742 1500
West 3rd Street, Third Floor Cleveland OH 44113-1429, Defendants., 2005 WL 2916835,

*2916835 (Trial Motion, Memorandum and Affidavit) (M.D.Pa. Sep 2005) Plaintiffs Opposition
To Defendants 12(b)(6)... (NO. 305-CV-1546)* *

41 Aimee MAXWELL, Plaintiff, v. Laure MARTIN, Defendant., 2002 WL 32934300, *32934300
(Trial Motion, Memorandum and Affidavit) (Ga.Super. Jan 07, 2002) Plaintiff Aimee MaxwelPs
Brief in Support of Her ... (NO. 99A55343-4)**

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